R v Amos

[2024] NSWDC 687

District Court

New South Wales

Medium Neutral Citation:

R v Amos [2024] NSWDC 687

Hearing dates:

17 June 2024, 5 August 2024, 10 September 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

The offender is convicted of each of the six offences.

For sequence 1, he is sentenced to a period of imprisonment of 12 months commencing today 13 December 2024.

For sequence 2, he is sentenced to a period of imprisonment of 12 months commencing 13 March 2025.

For sequence 3, he is sentenced to a period of imprisonment of two years commencing 13 June 2025.

For sequence 4, he is sentenced to a period of imprisonment of 12 months commencing 13 December 2025.

For sequence 5, he is sentenced to a period of imprisonment of 12 months commencing 13 June 2026.

For sequence 6, he is sentenced to a period of imprisonment of two years commencing 13 December 2026.

The offender is sentenced to an overall non-parole period of two years commencing today 13 December 2024.

Catchwords:

CRIMINAL LAW – Fraud – Commonwealth offences – Use position as officer of company to dishonestly gain advantage/cause detriment – Offender was liquidator, voluntary administrator and/or deed administrator of five separate companies –Transferred funds beyond agreed or reasonable remuneration for administration of companies – Transfer from administration accounts to personal and business accounts not for benefit of companies – Total of approximately $2,518,483.31 dishonestly obtained by offender – Offending over the course of several years from 2016-2022 – Offending detected by ASIC after offender failed to lodge relevant returns – Offender to attend examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) – Some transfers at the end of the period made by the offender after giving an undertaking to ASIC not to deal with funds of companies – Offender used false descriptors of transfers – The amounts transferred significantly exceeded any amounts which could have been charged or agreed for unremunerated work.

SENTENCING – Sentence after pleas of guilty – Subjective factors on sentence – Significant assistance to authorities – Early plea of guilty – General deterrence very important for white collar crime – Mental health issues – Extra curial punishment – Reputational damage – Loss of marriage – Suicide attempts – Excellent prospects of rehabilitation but overall sentence too high for ICO – Only full time custody appropriate with low 50% NPP.

Legislation Cited:

Australian Securities and Investments Commission Act 2001 (Cth)

Corporations Act 2001 (Cth)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Category:

Sentence

Parties:

Rex (Crown)
Peter Andrew Amos (Offender)

Representation:

Counsel:
Ms D New (Crown)
Mr S Pararajasingham SC with Mr O Walker (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Stacks Law Firm (Offender)

File Number(s):

2023/454908

Publication restriction:

Pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the fact of any mental health condition suffered by any of the offender’s children.

This order is made pursuant to s 8(1)(e) of the Act, it being necessary in the public interest, and there is no issue in relation to open justice arising as a result of the making of the order.

Pursuant to s 12 of the Act, this order is to remain in force until further order of the court and is to operate throughout the Commonwealth of Australia.

JUDGMENT

1. This is the sentence judgment in the matter of Peter Amos. The offender is before the Court for sentence following pleas of guilty to six Commonwealth offences, all contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) (the Act). The provisions in s 131(1) of the Act dealing with penalties also apply to these offences.

2. Section 184 creates criminal offences when directors or other officers of the corporation do not act in good faith. Specifically, each of these six counts is contrary to s 184(2)(a), which provides the following:

A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:

(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else or causing detriment to the corporation.

3. The offender has pleaded guilty to committing six separate offences contrary to this section, admitting thereby for all offences that as an officer of nominated companies he used his position dishonestly, with the intention of directly or indirectly gaining an advantage for himself or another. That is the same for each sequence, but details involving the date range, nominated company and the nature of his position are different for each sequence. The details are as follows:

1. Sequence 1 occurred between 6 October 2016 and 12 March 2019, when he was in a position of voluntary administrator, and later deed administrator of Mikcon Employment Services Pty Limited (Mikcon).

2. Sequence 2 occurred between 13 March 2019 and 31 December 2022, when he was in the same position with Mikcon.

3. Sequence 3 occurred between 13 March 2019 and 31 December 2022, when was in the position of voluntary administrator and later as deed administrator of the company TPC (Vic) Pty Limited (TPC). When sentencing for sequence 3 the offender asks that I take into account one additional offence pursuant to s 16BA of the Crimes Act 1914 (Cth), which is item 1 in the s 16BA schedule form signed by the offender and on behalf of the CDPP and is tendered on this sentence. It is a further offence, contrary to s 184(2)(a), which occurred in the period 9 January 2018 to 12 March 2019, also involving TPC.

4. Sequence 4 occurred between 17 September 2019 and 31 December 2022, when he was in the position of liquidator of the company P O W 4X4 Pty Limited (POW).

5. Sequence 5 occurred between 13 March 2019 and 31 December 2022, when he was in the position of liquidator of the company A Force Electrics Pty Limited (A-Force). When sentencing for sequence 5 the offender asks that I take into account one additional offence pursuant to s 16BA of the Crimes Act 1914, which is item 2 on that form. It is a further offence contrary to s 184(2)(a), which occurred in the period 28 June 2018 to 12 March 2019, also involving A-Force.

6. Sequence 6 occurred between 20 October 2021 and 28 December 2022, when he was in the position of voluntary administrator and later deed administrator of the company Conomi Group Pty Limited (Conomi).

4. The maximum penalty for sequence 1 is 5 years imprisonment or 2,000 penalty units or both. The maximum penalty for each of the other sequences is 15 years imprisonment. The difference is because the maximum penalty for offences pursuant to this section increased from 13 March 2019.

5. Before coming to the relevant facts in evidence for this sentence, it is appropriate to record the background to the sentence in this Court. It was originally listed for one day on Monday 17 June 2024. It had not been allocated to any judge in advance. Even an estimate of one day in the circumstances was probably an underestimate, but patently so in circumstances where none of the material already filed had been provided to any judge to read in advance. The statement of agreed facts extends to 33 pages, comprising 18 pages and 144 paragraphs of agreed facts, and 15 pages of annexures, being columns of figures setting out the monetary subject matter of each of the charges.

6. Fortunately, the Crown, foreshadowing criticism, had prepared a precis or summary of those facts, which is helpful, but it was still necessary to read the full version of the agreed facts to understand, not only the precis, but also the evidence that emerged during the sentence proceedings. The first set of Crown submissions extended to 17 pages, being 84 paragraphs. On behalf of the offender, there was a bundle of documents filed, which included a 16-page, 134 paragraph affidavit from the offender himself, a 13-page forensic psychiatric report, and several pages of references. The first set of written submissions on behalf of the offender extended to 15 pages, being 46 paragraphs.

7. I was allocated this sentence at 11am on Monday 17 June 2024. As is clear from the transcript on that day, I was less than impressed about the fact that this had occurred, and particularly so when it became clear that the offender proposed to give oral evidence, as is his right, and call other evidence. This sentence was never going to finish in one day, with the evidence itself likely to take at least two days and also allowing time for oral submissions. The judicial time involved in reading and understanding the evidence initially, reviewing the oral evidence and submissions, and time involved in considering the submissions and formulating reasons for judgment was always going to add at least one or two days.

8. The fact that this was not appropriately allocated or dealt with by the Court is not something for which the lawyers can be held entirely responsible. However, it was never even a one-day sentence, and it should have been requested to be listed as a short trial, with evidence following logically and sequentially one day after another without long adjournments.

9. Practitioners in the Court are aware that judges are usually in Court every day, during normal court hours and rarely have large chunks of time to devote to reviewing evidence and transcripts of oral evidence and submissions, and these practicalities ought to have been taken into account on this occasion and ought be taken into account when estimates are given by lawyers who practice in this Court.

10. I now then move to the relevant facts.

11. By way of background, the offender is a chartered accountant and holds a Bachelor of Business degree.

12. He started working in the insolvency profession in 1993, when he was 17, with Ferrier Hodgson. He then moved to Sims Partners. In March 2004, he was seconded to ASIC to work on liquidator cases which they brought before the Company Auditors and Liquidators Disciplinary Board. This was a statutory board responsible for considering applications for the cancellation or suspension of the registration of auditors or liquidators under the relevant provisions of the Corporations Act 2001 (Cth).

13. Whilst working with ASIC, he also worked at the National Insolvency Coordination Unit. He left ASIC in August 2005 and became a registered liquidator on 11 May 2006. He ran an accounting business, specialising in insolvency services. He has been the sole director and shareholder of Amos Insolvency Pty Limited since 1 December 2008. He was the principal accountant and registered liquidator in that business. Between 2015 and 2023, Amos Insolvency carried on that business, employing about eight people.

14. As an example of the level of work that was undertaken during 2022 and 2023, it would appear, according to the facts, as at 2022-2023, he has been appointed the external administrator for approximately 80 to 90 companies.

15. Relevantly for the specific charges here, between 30 September 2016 and 22 February 2022, he was appointed as external administrator of the following companies:

1. Mikcon

2. PCC

3. A-Force

4. POW

5. Conomi.

16. In November 2021, ASIC contacted the offender to ask that he lodge outstanding forms relating to receipts and payments in the administration of Mikcon and also requested that he provide other documents in connection with his administration of that company. He did not provide that material. In March 2022, ASIC served him with a notice to produce copies of bank statements and bank reconciliations for Mikcon. They also issued him a direction to lodge outstanding documents relating to the administration of Mikcon.

17. In April 2022, ASIC issued the offender with a direction that he not accept further insolvency appointments because he had failed to lodge these requested documents.

18. On 15 November 2022, ASIC commenced an investigation into the role of the offender as external administrator of all five nominated companies and on 16 November 2022, required him to attend an examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). That examination was meant to occur on 23 November 2022. There were some difficulties connected with that appointment, to which I will refer soon, and it was ultimately conducted on 2 February 2023.

19. I will now summarise some of the statutory provisions that are relevant for this sentence. The offender was the external administrator of each of the five companies and, as such, is defined in the Act as an “officer” of the companies. For two of the offences, he was in fact appointed as the liquidator, but pursuant to Sch 2 of the Act, an external administrator includes a liquidator, administrator or deed administrator of the company. He filled one or other and sometimes two of those roles for all five companies during the relevant time periods.

20. Provisions of the Act set out the regime for remuneration of external administrators. I accept that they are entitled to receive remuneration for necessary work properly performed by them in relation to the administration for the company. Usually, the amount of that remuneration will be set and a remuneration determination made, either by the members in a members voluntary winding up or in most other cases by the creditors. If there is no remuneration determination, an external administrator is entitled to receive a reasonable amount for work undertaken, but there is a maximum amount that can be recovered in these circumstances and is dependent on the appointment date, indexed each year.

21. These legislative provisions also allow for retrospective remuneration authorisation by creditors and for the possibility of court orders, in the event that retrospective authorisation is not given.

22. The duties and responsibilities of external administrators in relation to the handling of funds received during the course of administration, the keeping of records, and reporting to ASIC are all governed by statutory provisions. These provisions are summarised at [31] to [41] inclusive of the agreed facts and in the offender’s supplementary submissions on the approval process, which is MFI 4. I will not refer to these provisions in any greater detail on this sentence.

23. Amos Insolvency operated three bank accounts for the purpose of its insolvency business as follows:

1. Amos Insolvency Trust Account, referred to as Controlled Account 1.

2. Amos Insolvency Pty Ltd Business Everyday Account number ending in 106, referred to as Controlled Account 2.

3. Amos Insolvency Pty Ltd Business Everyday Account number ending in 902, referred to as Controlled Account 3.

24. The offender was the sole signatory of Controlled Accounts 1 and 3. He and his wife were joint signatories of Controlled Account 2, which was used, as I understand the evidence, largely for their joint personal expenses.

25. I now turn to the specific facts for each offence.

26. Sequences 1 and 2 both involved the company, Mikcon. The offender was appointed voluntary administrator of that company on 30 September 2016. On 6 October 2016, he set up a bank account with NAB for the administration of Mikcon, referred to as the Mikcon EXAD Account. He was the sole signatory of that account.

27. On 19 December 2016, he was appointed as a deed administrator of a Deed of Company Arrangement for Mikcon. During his administration of the company, he obtained approval from creditors for the payment of his remuneration in a total of $86,544.10. This total comprised four separate amounts which are set out in table 1, at [54] of the agreed facts. These amounts were all approved on 5 December 2016 and included remuneration for four separate periods, as set out in that table. The largest individual amount of these four was the sum of $44,176.45 for the period 30 September 2016 to 25 November 2016. There was no other approved remuneration for this company.

28. During his administration of this company, the offender reported four separate expenses on separate dates in 2018. These were reported to ASIC on 7 December 2021 and totalled only $3,550. During the period from 16 January 2017 to 4 October 2021, a total of $959,508.95 was transferred from the Mikcon EXAD Account to the three Amos Insolvency Controlled Accounts. The totals transferred to each account appear in table 3, at [53] of the agreed facts.

29. By 2 February 2017, the offender had transferred sufficient funds from the Mikcon EXAD account to the Controlled accounts to cover the approved total remuneration amount. All funds transferred to any of the Controlled accounts following that date were transferred without any approved remuneration agreement. None of those excess funds were then used for purposes relating to the administration of Mikcon.

30. Funds were used by the offender for a variety of purposes, including payments of expenses to run the Amos Insolvency business and for personal expenses. Many payments made to the Controlled accounts from the Mikcon EXAD account were inaccurately described, including 31 individual payments totalling just over $650,000 paid from the Mikcon EXAD account to Controlled Account 1, which were described in the relevant bank statements as a “term deposit”. None of these funds were ever paid into a term deposit but were used for other purposes, but none in relation to the administration of Mikcon.

31. During the same period, payments were also made from the Mikcon EXAD account to Controlled Account 2, of which the offender was a joint signatory with his wife. The detail of those payments, totalling just under $50,000, are set out at [66] of the agreed facts. None of them has any connection to the administration of Mikcon and some are clearly personal payments for the offender’s family.

32. Specifically for sequence 1, the facts are that this offence covers a period of his administration of Mikcon between 6 October 2016 and 12 March 2019. During this period, the offender obtained an advantage to himself of $717,160.72, which was the amount in excess of the approved remuneration agreements.

33. Sequence 2 specifically covers his administration of Mikcon for a period from 13 March 2019 to 31 December 2022. During this period, he transferred $152,254.13 from the Mikcon EXAD account to Controlled Accounts 1 and 2 in circumstances where all approved remuneration had already been covered by earlier transfers. None of these funds were used in connection with his administration of Mikcon and some included misleading descriptors in the bank accounts, such as “fees” and “suspense account”. The details are contained in annexure 1 of the agreed facts.

34. The total amount dishonestly transferred from Mikcon EXAD account to the Amos Insolvency accounts covered by both of these sequences for the whole period from 6 October 2016 to 31 December 2022, was $869,414.85.

35. The relevant facts for sequence 3 and item 1 on the s 16BA schedule are that this offence was committed in largely the same way and relates to the company TPC with item 1 on the s 16BA schedule committed between 9 January 2018 and 12 March 2019 and sequence 3, itself, committed between 13 March 2019 and 31 December 2022.

36. The offender was appointed the voluntary administrator of TPC on 22 December 2017. On 9 January 2018 he set up a bank account with NAB for the administration of that company, referred to as the TPC EXAD account. He was the sole signatory.

37. On 5 March 2018, he was appointed as deed administrator of a Deed of Company Arrangement for TPC. During the administration of TPC, he obtained approval from creditors for remuneration in a total of $50,413.14. That approval was granted on 13 February 2018 relating to four separate periods as set out in table 4 at [72] of the agreed facts. The largest amount of those four approvals was $20,557.40 for a period of one month, between December 2017 and January 2018.

24. Between 9 January 2018 and 12 March 2019, he transferred $2,436.86 from TPC EXAD to an account called Amos Insolvency Pty Ltd. There is nothing in the facts from which I can determine anything more than that he admits that he did so dishonestly, with the intention of directly or indirectly gaining an advantage for himself or another. This additional offence is to be taken into account for a period of time at which the maximum penalty for this particular offence was five years.

25. Between September 2019 and June 2022, he lodged four annual administration returns with ASIC. These returns are required to report on the amount of any remuneration determined or fixed by creditors, any remuneration paid to the date of the return and any disbursements paid. There were no expenses for the administration of TPC included in any of those returns.

26. Between 28 September 2018 and 3 August 2022, a total of $1,003,923.22 was transferred by the offender from the TPC EXAD account to Amos Insolvency controlled accounts 1 and 2. Annexure 2 to the agreed facts sets out the details of these individual transfers. Many of those transfers to controlled account 1 were described as “term deposit” and some of those transfers to controlled account 2 were described as “fees”. None of those labelled transfers was ever deposited to a term deposit, nor used to pay fees.

27. By 29 January 2019, the offender had transferred sufficient funds from the TPC EXAD account to cover the authorised remuneration. The total transferred to both controlled accounts exceeded the agreed remuneration by $950,510.08. None of these additional funds was used for purposes related to the administration of TPC.

28. Similarly to the counts involving Mikcon, these funds were used for a variety of purposes including expenses relating to the Amos Insolvency business, the payment of personal expenses of the offender and his family and in some instances paid to the accounts of other companies in administration.

29. Some examples of these payments are set out at [82] and [83] of the agreed facts. They include a payment made on 6 and 7 October 2021 of $50,000 to controlled account 2 via controlled account 1. At the time, controlled account 2 only had a credit of $1,207.23. The transfer was described as “term deposit.”

30. On 7 and 8 October 2021, payments were made out of controlled account 2 with descriptions including “wages”, “Amos/core bonus” and “Tax Office Payments”. A further example was the payment of $45,000 to controlled account 2 on 10 January 2022, which had a credit of only $2,389.71 at the time. This was described as “Investment”.

31. Then, between 10 and 18 January 2022, a total of $43,610.16 was paid out of controlled account 2 including an amount of $11,921.84 paid for the company POW called “Refund”, $2,000 called “Tax Office Payments” and $29,688.32 in electronic transfers with the labels “Electric cars”, “Flights”, “Flexirent”, “Wages” and “Insurance health”. Most of these, I accept, were largely personal expenses.

32. Sequence 4 was committed in much the same way. This offence involves a company POW and was committed between 17 September 2019 and 31 December 2022. The offender was appointed liquidator of POW on 11 September 2019. He set up a bank account on 17 September 2019 with NAB for the administration of POW. That was the POW EXAD account. Again, he was the sole signatory of that account.

33. During the administration, he obtained remuneration approval by creditors in a total of $65,921.90. The details are set out in table 6 at [87] of the agreed facts. That approval was granted on 15 October 2019 and 13 January 2020 for three separate periods between 11 September 2019 and completion. The largest of these three individual amounts was $30,000, approved on 15 October 2019 for the period described as 11 September 2019 to finalisation. He reported a total of $2,160 in expenses to ASIC between 14 December 2020 and 10 December 2021.

34. Between 13 October 2019 and 7 February 2020, the offender transferred a total of $176,789.26 from the POW EXAD account to Amos Insolvency controlled accounts 1 and 2. Annexure 3 to the agreed facts sets out the breakdown of those transfers.

35. By 4 February 2020, all approved remuneration had been paid and there were no further remuneration authorisations. A total of $108,707.36 was transferred from POW EXAD account to the Amos Insolvency controlled accounts above the approved remuneration total. None of these extra funds were used for the administration of POW.

36. Funds were paid both from the POW EXAD account to both controlled accounts and also between those accounts. From controlled account 2, various payments were made for business or personal purposes, including items labelled as “Flights qld office”, “Telstra”, “Wages”, “Flexirent”, “Transport Xmas” and a sum of $30,619.31 to the account labelled “Peter Andrew Amos, Belinda Ellen Amos”.

37. Sequence 5 and item 2 of the s 16BA schedule were offences also committed in a very similar manner but relating to the company A-Force. The substantive offence was committed over a period between 13 March 2019 and 31 December 2022.

38. Item 2 of the s 16BA schedule was committed in the period between 28 June 2018 and 12 March 2016 and separately charged because of the change in the maximum penalty which occurred on 13 March 2019.

39. On 28 June 2018, the offender was appointed as the liquidator of A-Force and on that day, he set up a bank account with NAB for the administration of the company referred to as the A-Force EXAD account and again, he was the sole signatory of that account.

40. Between 28 June 2018 and 12 March 2019, the offender transferred a total of $17,500 from the A-Force EXAD account to Amos Insolvency Proprietary Limited, that is the subject matter of the second s 16BA offence, and he by asking that to be taken into account, admits that he made this transfer without a remuneration determination and contrary to s 184(2A). The agreed facts provide no further detail about this total transfer.

41. During his administration of that company on 28 June 2018, he obtained approval from the creditors for remuneration in the sum of $22,000. The detail is set out in table 19 at [100] of the agreed facts. It provides simply that the period of remuneration was from 28 June 2018.

42. During the administration of this company, between 8 November 2018 and 1 June 2022, he reported various expenses to ASIC. The total of these was $5,009.49. Some of these were as small as $50 and the largest, $1,238.49, was apparently incurred on 8 November 2018. There is no detail about what these expenses were for.

43. Between 13 August 2018 and 22 December 2022, the offender transferred a total of $178,109.49 from the A-Force EXAD account to controlled accounts 1 and 2. Most of that was transferred to controlled account 2 in the sum of $149,359.49.

44. By 13 August 2018, the offender had transferred sufficient funds from the A-Force EXAD account to the controlled accounts to cover the approved remuneration. The amounts transferred exceeded the authorised amount by $146,100. There were no additional remuneration agreements and none of these additional funds were used for purposes of the administration of that company.

45. These additional funds were used for a variety of purposes, including payment of expenses for the Amos Insolvency business and for personal use. This included transferring $20,000 on 18 March 2019 from the A-Force EXAD account to controlled account 2 using the descriptor “Term deposit”, and on the same date transferring out of that account an amount of $20,000 with the bank descriptor being the trading name of a private girls school which the offender’s daughter attended at the time.

46. The funds transferred to Controlled accounts were never used for any term deposit and were never used for purposes connected with the administration of A-Force.

47. Sequence 6 was committed in largely the same way in relation to the company Conomi and covers the period 20 October 2021 to 28 December 2022. On 20 October 2021, the offender was appointed the voluntary administrator of Conomi. On 26 October 2021, he set up a bank account with NAB for the administration of that company referred to as the Conomi EXAD account. He was the sole signatory of that account.

48. On 22 February 2022, he was appointed as Deed Administrator of a Deed of Company Arrangement for Conomi. During his administration of the company, he received creditors’ approval for remuneration in a total of $147,284.39. These approvals were all dated 1 February 2022 and covered four separate periods as set out in table 12 at [114] of the agreed facts. The largest of any of these four amounts was $90,894.90 for the period 20 October 2021 to 23 January 2022. There were no expenses reported by him in his administration of Conomi.

49. Between 26 October 2021 and 12 December 2022, the offender transferred a total of $1,750,569.41 from the Conomi EXAD account to Controlled Accounts 1 and 2, the vast bulk of that being to Controlled Account 1. One of the transfers to Controlled Account 1 was described as a “Term deposit” and three of the transfers to Controlled Account 2 were described as “Fees”.

50. From account 1, the offender distributed a first dividend to creditors totalling $1,159,534, which he advised to the creditors’ of Conomi. The total amounts transferred to Controlled Accounts 1 and 2, after deduction of the first dividend to creditors, exceeded the approved remuneration by $443,751.02. There were no further remuneration agreements and none of these excess funds were used for the purposes of administration of that company.

51. As previously stated, by November 2022, ASIC had started an investigation into the offender’s administration of companies, initially because of his failure to lodge requested documents relevant to Mikcon. On 21 December 2022 at about 3.30pm, ASIC wrote to his former solicitors demanding that by 2pm the following day he provide an undertaking to ASIC that he would not “…withdraw, transfer, pay away or in any other way deal with funds held by…” any company of which he was appointed external administrator.

52. His solicitors wrote back the following morning at about 10.30am saying that he would be willing to provide a signed undertaking in the terms set out in [122] of the agreed facts. ASIC accepted that, with an amendment, and at about 4.30pm on that day, 22 December 2022, the offender’s former solicitors sent a signed undertaking from the offender to ASIC, the terms of which appear at [124] of the agreed facts.

53. The additions to the original, as proposed by ASIC, would appear to be that the undertaking extended generally to any company to which he was currently appointed as an administrator, provisional liquidator or liquidator but specifically referred to Mikcon, TPC, A-Force and POW but not Conomi, except as covered by the general provision. It also exempted from the undertaking of any transfers or payments made in the ordinary course of his duties, but with a condition that he was required to give ASIC 24 hours’ notice, in writing, of any such payments or transfers including an explanation of the payment or transfer and supporting documentation.

54. On 22 December 2022, the offender transferred $10,000 and $12,000 in two separate transactions from the A-Force EXAD account to Controlled Account 2. It is not known at what time these transactions occurred. They did occur, however, at least on the same day that, at 4.30pm, his signed undertaking was received by ASIC.

55. On 28 December 2022, six days later, the offender directed that a contribution of $500,000 due under the Conomi Deed of Company arrangement be paid into Controlled Account 1, when it ought to have been paid to the Conomi EXAD account.

56. He was examined by ASIC investigators on 2 February 2023. Following that, ASIC asked him to repay that $500,000 from Controlled Account 1 to the Conomi EXAD account. On 3 February 2023, he transferred $390,000 from Controlled Account 1 to the Conomi EXAD account. He did not and never has repaid the balance of $110,000, apparently because there were not sufficient funds in Controlled Account 1 by the time he paid part of the $500,000. In fact, between 28 December 2022, when the $500,000 was transferred, and 2 February 2023, he had transferred funds out of Controlled Account 1 to pay various business and private expenses.

57. His initial transfer of $500,000 to Controlled Account 1 and misappropriation of $110,000 in this way was a breach of the undertaking he had given to ASIC in the afternoon of 22 December. In total, he dishonestly transferred $943,751.02 from Conomi EXAD to Controlled Account 1 of which he repaid $390,000. The total advantage he gained was $553,751.02.

58. They would appear to be then the relevant facts for each of the individual counts. As I understand it, after taking into account the $390,000 that was repaid to Conomi, the total amount dishonestly transferred by the offender to his controlled accounts covered by each of these six offences, together with the two s 16BA schedule matters, is $2,518,483.31.

59. I now turn to the events that follow the ASIC investigation. From a combination of the agreed facts and the affidavit and oral evidence from the offender, I accept that he was first examined by ASIC in December 2022. At least by that stage he knew that ASIC was aware he had transferred money without the requisite approvals. He began to realise the seriousness of the position he was in. He started to research methods to commit suicide and twice tried to do so, unsuccessfully.

60. He was examined again in January 2023 and, following ASIC’s offer to do so, requested that his registration as a liquidator be suspended. That occurred and his suspension took effect from 4 February 2023.

61. From 14 April 2023, he was not permitted to accept further appointments in accordance with the direction to that effect from ASIC.

62. After the meeting with ASIC in January 2023, he effectively stopped the work of Amos Insolvency and emailed his staff that day to terminate their employment.

63. He spoke to his GP about his suicidal thoughts and was referred to a clinical psychologist but only attended for one session, I accept, in large part, because of his avoidant behaviour at the time.

64. Between 4 and 14 February 2023, he researched other ways of committing suicide including jumping off a bridge in Douglas Park. On 14 February 2023, he decided to do that, went to the bridge and drank a bottle of whiskey in his car, then walked to the middle of the bridge intending to jump. He then messaged a friend of his wife asking that she go to see her, because he wanted her to have someone with her when she received the news of his suicide. That friend called him, and he told her his plans. She rang the police who took him to Campbelltown Hospital where he was admitted to the psychiatric ward as an involuntary patient and remained until he was discharged on 22 February 2023.

65. On discharge, his wife advised him that their marriage had ended. He was then forced to go to live with his parents on the Mid North Coast of New South Wales until September 2023.

66. On 20 April 2023, his lawyers met with ASIC to explore whether their investigations could be resolved by way of an early guilty plea. I infer that there were negotiations thereafter to compile the agreed statement of facts in the way that it is now before the Court.

67. On 14 December 2023, the offender signed the agreed statement of facts and on 15 December 2023, he was committed for sentence on these six charges to this Court from the Local Court. These pleas of guilty are therefore entered at the first available opportunity.

68. These offences are all Commonwealth offences and as such the sentences must be pursuant to Pt 1B of the Crimes Act 1914. This requires the Court to take into account those matters referred to in s 16A(2) which are relevant and known.

69. In this case they include, 16A(2)(a), the nature and circumstances of the offence. To a large extent they are as referred to earlier when setting out the relevant facts. This is, of course, another way of referring to the objective seriousness of the offending, which here is informed by a number of factors including the following:

1. Each of the offences occurred over a relatively lengthy period including offending for most at least three years, and for sequence 6 just over one year but in reality because by the end date of that offence, he had been caught by ASIC;

2. Each offence involves a rolled-up charge involving a series of transfers or a series of criminal acts, each one of which would be contrary to s 184(2)(a). None of the individual charges before the Court can be viewed as a one-off offence, or an isolated offence;

3. He was an administrator and liquidator with considerable experience. As such, he knew that what he was doing was dishonest. Dishonesty pursuant to the Criminal Code Act 1995 (Cth) means contrary to the standards of ordinary people and known to the offender to be contrary to those standards. The dishonesty here is agreed by the offender at [132] and [133] of the agreed facts, including the fact that he knew that taking funds out of the various EXAD accounts without authorisation was dishonest. He knew that he was only permitted to do so for work carried out and approved in accordance with remuneration agreements. He knew that transferring a total of just over $2,500,000.00 from the various EXAD accounts to his own business or personal account without agreement, either in advance or granted retrospectively, was dishonest. I will deal with some other aspects assessing the overall dishonesty in due course;

4. Committing the offences involved a significant breach of trust between him and the creditors of the companies. The role of liquidator and administrator is one of trust;

5. He used false and misleading descriptors for many of the transfers. He knew that none of the transfers called term deposits or fees were in fact those things. I will deal with his evidence in relation to that soon;

6. Relevant for sequence 6, directing $500,000 to Controlled Account 1 when he knew it should have been deposited to Conomi EXAD account, then using $110,000 of that on business and personal expenses where there was no remuneration agreement to do so, when he had signed an undertaking to ASIC not to transfer funds at all from any company except in the ordinary course of business, was a breach of that undertaking, increasing the objective seriousness in relation to sequence 6. Overall, each of the offences is objectively serious, some more serious than others, in large part simply because of the amount of funds transferred. They are, in reality, all more or less committed in the same way and each of them for a significant period of time.

84. Another factor pursuant to s 16A(2)(b) that the Court must take into account is that other offences are required or permitted to be taken into account and I have referred to those already, being the two items on the s 16BA schedule.

85. Section 16A(2)(c) requires the Court to take into account, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct, which is a matter that I have referred to already.

86. One issue that needs to be determined when looking at the objective seriousness is what is, in effect, the dishonesty in this matter. The quantum of funds and length of offending are not the only matters which inform the objective seriousness of each of the offences.

87. Another factor is to determine what, in fact, the actual dishonesty represented for each of those offences. This is a matter which has taken up most time in evidence and submissions because the offender, to one extent or another, except for count 3 and s 16BA item 1 relating to the company TPC, claims that at least for some of the offences, the dishonesty amounted to transferring funds he knew he was not entitled to transfer because of the lack of an agreement, but in circumstances where he had actually completed work on behalf of that particular company, not yet covered in any remuneration agreement, either in advance or retrospectively.

84. That is not a claim of right defence, but a claim by the offender that in large part, as I understand it, is fuelled by his mental health condition of major depression, life events at the relevant time and the increasing procrastination that ensued and increased over time. He found himself incapable in confronting creditors to seek remuneration approval and also incapable of doing all of the work necessary to satisfy the basis of any such remuneration approval sought. But he ultimately convinced himself that he would be able to achieve that from the creditors either as the administration continued or at the end of that process. Thus, it is argued on his behalf that his moral culpability for the offending is reduced because he did not, in a calculated and premeditated way, seek to transfer funds to himself from these companies purely for his personal gain, but for at least some of the funds, he actually believed that he would be able either to recover the funds and pay back to the company or that he would be granted approval for them as remuneration.

85. As I said, there has been a substantial amount of evidence in submissions going almost entirely to this matter during the course of this sentence. I do not accept in general terms that this has been established. I accept that this is what the offender has convinced himself was the case and this is what he told Dr Furst when he first saw him in May 2024 for a medico-legal psychiatric report. It is what is contained in his affidavit affirmed on 14 June 2024. It is initially what he said in his evidence in court, but it seems to me that his evidence changed especially relevantly for count 3 involving TPC.

86. I do not accept that he has deliberately lied about that in any of those three sources and I will address this issue later, but I do accept that he was suffering from a significant mental illness at the time that he committed the offences and probably for a short time beforehand.

87. He was also dealing with significant life stressors involving his family. Whilst many parts of the evidence he gave about this in court were just not credible, he was a credible witness in relation to other aspects of his evidence. He did not give the impression of being a fraudster or a conman in the way that people who often commit offences of this type present to the Court. It was certainly not the way in which he was viewed by his personal and professional colleagues up to the time he committed these offences according to the references that have been presented to court.

88. He has however convinced himself that he was entitled to at least some of these funds, and to that extent, has minimised his own view of his criminality. It may be that this is a matter that needs to be addressed when assessing the issue of specific deterrence.

89. The evidence does not allow a finding that his dishonesty was minimal and that he was transferring funds for his own use in circumstances where he was likely to be able to claim them in due course. Ultimately in his evidence, he did not in fact assert that as a general proposition. Not only would such an assertion not sit with his own evidence given in relation to TPC, but it also flies in the face of logic.

90. The total amounts dishonestly transferred from Mikcon and Conomi were large, more than $90,000 in each case and in fact over $1 million in the case of Conomi. For each of those two companies, the most he had ever had approved as a single remuneration amount was $44,176.45 for Mikcon and $90,894.90 for Conomi. His evidence about the amount of work being done for any of these companies was vague and non-specific. What is more, at the time that he was undertaking these administrations, particularly towards the end of the overall period, by his own evidence in his affidavit, he had become almost totally work avoidant and was doing less and less as a result of the impact of his mental health on his ability to carry out his work.

91. There is nothing in the evidence which could ever lead to an inference that the level of work being undertaken for either of those two companies or any of the other companies, would have ever produced remuneration amounts approaching the amounts he transferred for any of the companies and in particular for Mikcon or Conomi, where those transferred amounts were large. There is evidence however that there was work being undertaken and fees for disbursements being paid on behalf of one or other of these five companies. However, there is no evidence from which that can be quantified.

92. That having been said however, and on the other side of that argument, nor is there any evidence from which I can determine the extent to which, if at all, some of the transfers may well have been covered by remuneration agreements had they been sought retrospectively. There is no evidentiary basis on which I could make a finding that his transfers were significantly above the amount that he might have been able to have granted retrospectively by way of remuneration agreements.

93. The dishonesty is informed not just by the fact that the offender admits he knew he should not have transferred any funds without an agreement but also, on my finding, because many of the transfers were used with a false or misleading descriptor including “term deposit” and “approved fees”. I do not accept the offender’s evidence that these were just place markers or something of that type so that in the future he could make good the funds. That evidence, in my view, just does not make sense, and particularly in light of some of the evidence that he gave, in which he frankly conceded that for some of those descriptors, it could not be a reference to fees, let alone approved fees. They were false descriptors, there never were any term deposits payable from funds in any of the EXAD accounts and nor were the amounts labelled fees or approved fees ever transferred for that purpose. The only rational explanation for his having done so, is that at some stage, if in fact anyone did seek to examine the bank accounts, they would at least at first blush appear to be genuine.

94. Having made that finding however, I do accept the evidence given by the offender that these descriptors in bank accounts were unlikely ever to be seen by creditors because they would be unlikely ever to dive that deeply into reports. However, they might at first blush perhaps mislead ASIC, albeit one might think not for very long because they were not sophisticated methods of hiding the true nature of the transfers. This is especially so as in many cases, there were almost immediate payments out of his business account for personal use with what appeared to be legitimate descriptors including flights, payment for school fees and the like.

95. I accept here that the dishonesty is serious and it is not of the minimal type argued on behalf of the offender. He intentionally transferred funds from each of these companies knowing he was only entitled to do so if he had an agreement, knowing that he did not have such an agreement and in some cases transferred them directly to his own business account, not to his trust account.

96. I accept that some of these transfers may well have been covered by work he had undertaken and that his dishonestly in doing so, without approval, to some extent is informed by the serious mental health condition which he suffered at the time, which reduces his moral culpability to some extent. This is a matter that I will address soon.

97. Sections 16A(2)(fd) and 16A(2)(e) require the Court to determine the personal circumstances of any victim of the offence and any injury or loss or damage resulting from the offence. The victims of these offences are the companies. I accept the Crown submission that while there is no specific evidence of either the quantum of any loss to any of the companies nor the impact of this loss on any of the five companies, nevertheless, it must flow logically that the funds dishonestly transferred by the offender for his own purposes were not available to those companies. He agrees by his pleas of guilty that none of those funds was ever used for purposes connected with the administration of any of those companies. It flows logically that there is likely to have been some loss or damage resulting from the offending, in circumstances where the offender only had access to any of those funds in any event because the companies were facing insolvency and he was appointed as liquidator or administrator.

98. It is not possible however to know the extent of that loss, injury or damage here either to any of the companies themselves or any of their individual creditors. There is no evidence and no basis on which the impact on any victim, or the extent of any injury, would amount to a factor which might aggravate the objective seriousness of the offending here, but nor is it a neutral consideration.

99. I accept the Crown’s submission that it is a matter of logic, in circumstances where the offender only had access to the funds because he was appointed either as an administrator or a liquidator to a company facing insolvency, transferring funds which came into the administration accounts of those companies dishonestly has depleted what was available to the company. This, I infer, is likely to have impacted adversely on the ability of that company to be solvent, perhaps to recover from insolvency and perhaps, most importantly, on the availability of funds for distribution to creditors.

100. In at least three of these companies, quite large funds flowed into the administration account and instead of using them for purposes to assist the company, the offender diverted them for his own use.

101. Section 16A(2)(g) requires the Court to take into account, if the person has pleaded guilty to the charge in respect of the offence, that fact, the timing of the plea, and the degree to which that fact or the timing of the plea resulted in any benefit to the community, of any victim or a witness to the offence.

102. I accept from the agreed facts, and generally that these pleas of guilty represent a willingness on the part of the offender to facilitate the interests of justice. There is also a significant utilitarian value represented by the timing of the plea. Whilst I accept it is a strong Crown case against the offender, it would have required considerable time and resources to gather admissible evidence capable of proving not just each offence, but each financial component of each offence, putting together a brief of evidence, and of course, it would have been a lengthy trial had the offender not pleaded guilty and done so early.

103. On the agreed facts, I accept that the offender’s agreement to admit the agreed facts and plead guilty at the earliest opportunity has enabled these charges to resolve much earlier than would have otherwise been the case, to be dealt with as rolled-up offences and has freed up resources which ASIC has been able to use for other investigations.

104. I am not either required to quantify a discount for these Commonwealth offences, nor bound to apply any maximum, but taken into account all of the matters referred to in s 16A(2)(g) relevant to a plea of guilty, I have decided to reduce the appropriate sentences here by a third to take those pleas of guilty into account.

105. Section 16A(2)(h) provides that the Court must take into account the degree to which a person has cooperated with law enforcement agencies in the investigation of the offence, or of other offences. In this case, the offender not only cooperated in the way I have outlined when pleading guilty early, he also requested the forfeiture of his registration from an early date in February 2023. He has assisted the replacement liquidators appointed to the company in the way set out at [138] of the agreed facts, which have included his facilitating the transfer of the electronic and physical files, accounting software, identifying various transactions the subject of the statement of agreed facts, reviewing and explaining the files to ASIC investigators and admitting to and identifying transactions involving the misappropriation of funds from the companies’ EXAD accounts.

106. I also accept that his cooperation with authorities has extended to his cooperation with the liquidator of his own company, as evidenced from the letter, which is exhibit 2, tendered on his behalf.

107. Section 16A(2)(j),(ja) and (k) require the Court to take into account the deterrent effect that any sentence under consideration may have on the person, in other words, specific deterrence, the deterrent effect that any sentence under consideration may have on another person, in other words, general deterrence, and also the need to ensure that the person is adequately punished for the offence.

108. The offender’s evidence as I referred to earlier may well, in fact, raise an issue in relation to specific deterrence, but as I said, I do not accept that he has necessarily deliberately lied in relation to those matters. I accept that he has convinced himself that that is the situation, but the fact is that I do not accept that what he claims to have been the case has been established by the evidence.

109. In all other respects, the need for specific deterrence is minimal, if at all here, because of the steps he has taken towards his own rehabilitation and the unlikelihood that he will ever offend and will deal with that soon.

110. In relation to general deterrence, I accept that it is a very important consideration in this case, as it is in relation to all cases involving white collar crime. There is a breach of trust involved in this offending. I accept that the role of an appointed administrator is as set out at [53] to [60] of the Crown’s submissions, which I will not repeat here. It is an important and public role and I also accept the submission on behalf of the Crown at [62], that because of the obligations cast on administrators by statute, offences involving the criminal breach of those obligations require a sentence which provides a deterrent to others who are also appointed in that role or who might consider being appointed to that role and who might consider offending in a same or similar way.

111. I accept that this is to some extent because there is a degree of trust reposed in administrators. Offences of this type are hard to detect because so much of what they do depends on trust. Further, offences of this type have the potential to undermine public confidence in the insolvency regime and also, the need for the sentence to reflect a degree of general deterrence is because like-minded appointed liquidators and administrators must know that if they abuse their entrusted appointment for their own financial gain then they face condign punishment.

112. Section 16A(2)(m) requires the Court to take into account the character antecedents, age, means and physical and mental condition of the offender. Some of those matters I have referred to already, but I accept that the offender comes to Court as a person with no prior convictions and I take that into account in his favour as I am required to do pursuant to s 16A.

113. He is 49 now and apparently operated his insolvency business from its inception until 2016 without coming under notice or apparently committing any similar offences, which is the first date covered by this group of six offences.

114. He has three children aged 9, 12 and 20. He is now divorced from his wife following the events that I set out earlier. I accept from evidence he has given himself, evidence given by his now partner and other references before the Court, that he is and always has been a devoted father who spends considerable time, particularly these days, with his two younger children.

115. He has re-partnered, and his partner gave evidence and as I have said, there are a number of references. As previously stated, I accept that he is and always has been a devoted parent and for a period of time after his suicide attempt, and being charged with these offences, he was not in contact with his children which caused him considerable distress. He now has regular contact with his two younger children and some ongoing contact with his older child.

116. I accept from the evidence overall that for a few years before 2016, he started to have marital problems and other family problems. I do not propose to set out the detail here in order to protect the wellbeing particularly of his children. The details are provided by him in his affidavit as to his background and in the history given to Dr Furst, and to a more limited extent, evidence given in Court. I accept those parts of that affidavit and that history. I accept that part of his affidavit referring to family commitments in the period leading up to the offending. I accept that more probably than not, he was already suffering from depression at that stage, which was not being treated.

117. He was experiencing serious procrastination as a result of his mental illness, that being the major depression with which he has now been diagnosed. He started to stay away from work and devote himself to family issues, much of which were very serious involving the ongoing health of his wife and children. He devoted himself to providing assistance to his wife and children, particularly long periods of time transporting them from place to place, including for treatment.

118. I actually accept his own insight about that period, albeit now developed with the benefit of hindsight, that he was already spiralling at that stage. He was not keeping time sheets, he was not working sufficiently in his business, he had employees, but he was not supervising them properly and there were some issues in relation to some of those employees. He was continuing to get referrals as an administrator and liquidator and doing some of the tasks necessary, but his ongoing and deteriorating mental health condition meant that he was not doing them properly. That included not seeking appropriate remuneration authorisations, let alone keeping time sheets which would justify those authorisations.

119. At the same time his business needed to continue, his employees needed to be paid, his family needed to be supported. Nonetheless, he avoided his work and concentrated on other activities. Not surprisingly, he started to have financial problems and then started to commit the offences before me. His mental health did not improve and, in fact, deteriorated. His marriage started to fail, his physical health deteriorated, and he began to drink excessively on the weekend and also gamble at some stage.

120. As I have said, it was at this point that he started to commit the offences before me and from the beginning nothing got any better. I accept that he convinced himself initially that he would be able to recover these funds but by the end of the offending, I do not accept that in reality he could have actually believed this to be the case because of the sums involved, but that by that stage, everything had got out of control.

121. During the time of COVID, his business was not receiving any referrals because of the moratorium on insolvent trading and winding up applications, and for a period of time, Amos Insolvency had no income apart from what it could generate from existing jobs. Nonetheless, he continued to draw fees to meet the cash flow needs of his company and himself and to do so dishonestly as is referenced by these offences.

122. It was in those circumstances that he transferred the funds without getting the appropriate remuneration approvals. I have read the medico-legal psychiatric report from Dr Furst which is helpful in determining his mental state both at the time of offending and at present. I accept his diagnosis that the offender suffered from a major depressive disorder which was in existence at the time he committed the offences. I accept that it played a part in his offending because his depression created the procrastination and inability to take the necessary steps to get whatever fees he might be entitled to claim honestly and without dishonestly transferring funds.

84. I accept from Dr Furst’s report that his major depressive disorder amounts to a mental health impairment which impairs a person’s daily functioning and that amongst the symptoms are difficulty in thinking, concentrating or making decisions and finding it hard to focus, remember things or make decisions.

85. I also accept Dr Furst’s opinion that there is a connection between the offender’s offending and the major depressive disorder with which he was suffering and in particular that that together with the combination of stress, anxiety and other matters occurring at the time, likely affected his judgment and led to poor decision-making in relation to his work and his own responsibilities as an external administrator.

86. I further accept Dr Furst’s opinion that the offender does not appear to be an inherently antisocial or criminal person and in particular, I accept his opinion that the offender has taken significant steps towards recovery by working in a new job in a completely different capacity, starting a new relationship and becoming more aware and insightful in relation to his emotional problems and emotional needs because of ongoing sessions with the psychologist.

87. I accept that he has his parents available to him who are supportive and, as I will come to in a moment, I accept Dr Furst’s opinion that he has good prospects of being successfully rehabilitated and his risk of reoffending is lower than the average offender coming before the Courts for dishonesty offences of this nature.

88. So, following my acceptance of those opinions, I accept that the offender’s mental health played a role in his offending. To that extent, his moral culpability is somewhat diminished. Also, the role of general deterrence is to some extent diminished. However, in this case it seems to me that notwithstanding the fact that he had a mental illness and continues to have a mental illness, that does not play a particularly significant part in an assessment of the role of general deterrence in this sentence.

89. The Court must also take into account pursuant to s 16A(2)(n), the prospect of rehabilitation of the person. As I have said, I accept the opinion of Dr Furst, which coincides with my own opinion, that his prospects of rehabilitation are excellent. Since he was released from hospital after the suicide attempt, I accept he has sought ongoing psychological treatment and has done so successfully. He has resolved many of those issues that beset him at the time he committed these offences. He has found employment in a completely unconnected field, and in a field that was probably initially well below his qualifications and expertise, but he has done so and made a contribution to the community in that way. No doubt he has also done so in order that he could continue to support his children.

90. He has a new relationship which appears to be positive. He has, as I have already said, an ongoing strong relationship with his two younger children and an ongoing relationship with his older child and they motivate him to further excellent prospects of rehabilitation.

91. Section 16A(2)(p) requires the Court take into account the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependents. Whilst there is nothing in the way of specific evidence here, I accept that his family will suffer. He spends considerable periods of time with his two younger children including attending sporting functions and the like. They will suffer if he is not available in the community for a period of time and no doubt his new partner will also suffer. That much is not in dispute but as I understand it, there is not much other evidence before the Court apart from that.

92. I also accept there is some extra curial punishment that has been suffered by the offender as a result of committing and being charged with this offence. He has been the subject of publicity. He has lost his reputation. He has lost his wife and his marriage. He has, to an extent, been estranged for a little while from one of his children. He was not able to have contact with two of his children for a period of time. He has attempted suicide, so he has attempted to punish himself. He has lost his career and his good standing in the community. They are instances of the extra curial punishment that have occurred in this matter.

93. I now come to determine what is the appropriate sentence here. To do so, I look to the relative objective seriousness of each offence. Each party has agreed with the relative descending scale of objective seriousness largely based on the amount of money involved and the period of time. I accept that sequence 6 is the most serious because of the amount transferred dishonestly, namely $943,751.02 transferred only over one year and two months but also the objective seriousness increased because of the large component of that sum transferred contrary to an undertaking to ASIC. The fact that it is for a shorter period is largely because it was the most recent in time and he came to attention and was caught.

94. The maximum penalty for this offence is 15 years. There are no comparable sentences for any of sequences 2 to 6 inclusive. There is no appropriate penalty other than a term of imprisonment. That much is not in dispute between the parties.

95. I have determined that the appropriate penalty for this without taking into account the plea of guilty would be three years reduced by 12 months giving rise to a term of imprisonment of two years.

96. The second in descending order of seriousness is sequence 3, relating to TPC, with the attendant s 16BA offence. Whilst I am required to take that offence into account in a meaningful way, it should not in this case increase the penalty because sentenced alone it would probably not give rise to a term of imprisonment given the amount that was transferred, namely $2,436.86. I do take it into account, but it will not increase what would otherwise be the appropriate sentence for sequence 3 itself. The total excess for sequence 3 was $950,510.08 involving many transfers and occurring over a relatively lengthy period. I have determined that the appropriate sentence for that would also be three years less 12 months to take into account the pleas of guilty giving rise to a sentence of two years.

97. Next in descending order of seriousness are sequences 1 and 2 in relation to Mikcon. The total transferred for these two together in excess of approvals was $869,414.85, but most of the transfers were in the period covered by sequence 1, the excess being $717,160.72 when the maximum penalty was five years. I have concluded that the appropriate sentence for that would be 18 months less six months for the plea of guilty giving rise to a period of imprisonment of 12 months.

98. For sequence 2, the excess was $152,254.13 over a longer period but for a much smaller amount but at a time when the maximum penalty was 15 years. It seems to me, however, appropriate to view the sentence as a similar length, that is 18 months less a third for the plea of guilty giving rise to a sentence of 12 months. There is, of course, an overlap and an issue of totality which I must take into account in relation to these two separate sentences. I will be structuring the sentence so that there is, in effect, an overall sentence of 15 months for the combination of counts 1 and 2 involving Mikcon.

99. Sequence 5 and item 2 of the s 16BA schedule involves a dishonest transfer in a total of $146,100. Again, in my view, the s 16BA offence should not increase the sentence for the substantive offence, even taking it into account in a meaningful way. The total amount for that offence was only $17,500 at a time when the maximum penalty was five years. Overall, I accept that the appropriate sentence would be one of 18 months again less six months for the plea of guilty, again giving rise to a term of imprisonment of 12 months.

100. The last in terms of seriousness is sequence 4. That involved the company POW. That was a lower amount transferred dishonestly, and it seems to me that again an appropriate starting point is 18 months less six months for the plea of guilty giving rise to a sentence of 12 months.

101. If these were entirely accumulated, that would be seven years and three months. In my view, that is excessive in the circumstances and there needs to be a degree of partial accumulation to address total criminality. In this sentence it has been argued on behalf of the offender that when approaching each of the individual sentences, giving proper account to totality and in particular giving proper account to what is said to be the powerful subjective case presented on behalf the offender, the Court could arrive at a sentence of three years or less which would enable the Court to give some consideration to whether or not any sentence ought be served by way of Intensive Correction Order.

102. I do not accept that that could be the appropriate outcome here, namely a sentence of three years as an aggregate. Given the appropriate individual sentences and the circumstances that I have generally outlined relating to the objective seriousness, the need for general deterrence, albeit taking into account the powerful subjective case on behalf of the offender, it seems to me must give rise to a sentence in excess of three years.

103. I have determined that an appropriate sentence overall is one of four years imprisonment. I propose to put that into effect by sentencing individual sentences commencing at different periods between today, ending in four years on 13 December 2028. I will be setting a non-parole period overall, as I am required to do under the Commonwealth legislation, of two years. There is no specific formula required to be implemented by the Court in setting a non-parole period for a series of Commonwealth offences. There is no statutory percentage. There have in the past been what are referred to as “rule of thumb” amounts but there is no binding authority.

104. I have determined that the non-parole period will be 50% of the overall sentence, taking into account a number of factors including the fact that it should be as low as possible in this case because of the offender’s demonstrated rehabilitation and the fact that that will be interrupted whilst he is in prison and the fact, in particular, that his psychiatric condition will almost certainly deteriorate whilst he is in prison. I have also taken into account the fact that this is the first time that he has been in prison which will render his experience of that more onerous.

105. These are the orders that I make:

1. The offender is convicted of each of the six offences.

2. For sequence 1, he is sentenced to a period of imprisonment of 12 months commencing today 13 December 2024.

3. For sequence 2, he is sentenced to a period of imprisonment of 12 months commencing 13 March 2025.

4. For sequence 3, he is sentenced to a period of imprisonment of two years commencing 13 June 2025.

5. For sequence 4, he is sentenced to a period of imprisonment of 12 months commencing 13 December 2025.

6. For sequence 5, he is sentenced to a period of imprisonment of 12 months commencing 13 June 2026.

7. For sequence 6, he is sentenced to a period of imprisonment of two years commencing 13 December 2026.

8. He is sentenced to an overall non-parole period of two years commencing today 13 December 2024.

149. Can I say that this has been a lengthy and difficult sentence and I do not enjoy sending people to gaol, because I am perfectly aware that as an individual, he will not benefit from the time that he spends in gaol. I am also perfectly aware that white collar crime is one of those few areas of sentencing where there is evidence to indicate that general deterrence actually works.

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Decision last updated: 12 August 2025