R v Anquetil

[2020] NSWSC 995

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Anquetil [2020] NSWSC 995

Hearing dates:

30 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Common Law

Before:

Payne JA

Decision:

(1) For count 1, being an offence contrary to s 135.4(3) of the Criminal Code, the offender is sentenced to a term of imprisonment of 4 years and 8 months commencing on 31 July 2020 and expiring on 30 March 2025.

(2) For count 2, being an offence contrary to s 400.3(1) of the Criminal Code, the offender is sentenced to a term of imprisonment of 6 years to date from 31 January 2022 and expiring on 30 January 2028.

(3) Pursuant to s 19AB(1) of the Crimes Act 1914 the Court fixes a single non-parole period of 5 years, expiring on 30 July 2025.

Catchwords:

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth – significant loss to the Commonwealth – persistent course of conduct – early plea of guilty – [redacted] – good prospects of rehabilitation

Legislation Cited:

Crimes Act 1914 (Cth), Pt IB, ss 16A(1), 16A(2), [redacted], 16BA, 16F, 17A

Criminal Code Act 1995 (Cth), Schedule ss 135.4(3), 400.3(1)

Evidence Act1995 (NSW), ss 136, 191

Proceeds of Crime Act 2002 (Cth), ss 320(b)

Cases Cited:

AB v R [2013] NSWCCA 333

Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518

Dickson v R [2016] NSWCCA 105

Director of Public Prosecutions (Cth) v Afiouny [2014] NSWCCA 176

Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145

Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244

Ha v R [2008] NSWCCA 141

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Issakidis v The Queen [2019] NSWCCA 302

Kristensen v R [2018] NSWCCA 189

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McKinnon v R [2020] NSWCCA 106

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Agius; R v Zerafa [2012] NSWSC 978; (2012) 87 ATR 528

R v Anthony James Dickson (No 18) [2015] NSWSC 268

R v Hawkins (1989) 45 A Crim R 430

R v Host [2015] WASCA 23; (2015) 248 A Crim R 352

R v Issakidis [2018] NSWSC 378

R v Kitson [2019] NSWSC 1109

R v Lamella [2014] NSWCCA 122

R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7

Shi v R [2014] NSWCCA 276; (2014) 246 A Crim R 273

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Sentence

Parties:

Regina (Crown)
Simon Paul Anquetil (Offender)

Representation:

Counsel:
S Dowling SC with R Sharp (Crown)
P Strickland SC with P Lange (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Hanna Legal (Offender)

File Number(s):

2017/150658

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by Payne JA are not to be published (other than to the parties and their legal representatives) until further order of the Court.

(2) Order (1) is made on the ground specified in s 8(1)(c) of the Act.

(3) Pursuant to s 11(2) of the Act, order (1) is to apply throughout the Commonwealth of Australia.

(4) The sealed envelope handed up on the sentence proceedings (Exhibit 3) is not to be opened without an order of a Judge of the Supreme Court.

Judgment – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. PAYNE JA: Mr Simon Anquetil has pleaded guilty and appears before me to be sentenced for two offences:

1. “Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with others, namely Adam Michael Cranston, Lauren Anne Cranston, Devyn Michelle Hammond, Joshua Meredith Kitson, Dev Menon, Jason Cornell Onley, Daniel Rostankovski, and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.

Contrary to section 135.4(3) of the Criminal Code (Cth).

2. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did deal with money that was, and that he believed to be, proceeds of crime and at the time of the dealing the value of the money was $1,000,000 or more.

Contrary to section 400.3(1) of the Criminal Code (Cth).”

2. For the purposes of s 16BA of the Crimes Act1914 (Cth) there is an additional money laundering count attached to count 2. The schedule to that form lists the following offence:

“[In] Sydney, NSW or elsewhere … [b]etween about 1 February 2017 and about 26 April 2017 Simon Paul Anquetil did jointly commit an offence with Adam Michael Cranston, Dev Menon and Jay Cornell Onley, in that they did deal with money that was, and that he believed to be, proceeds of crime and at the time of the dealing the value of the money was $1,000,000 or more contrary to s 400.3(1) with s 11.2A(1) of the Criminal Code (Cth).

Particulars of the quantum dealt with: $24,244,760.64.”

3. The maximum penalty for the offence under s 135.4(3) of the Criminal Code is imprisonment for 10 years and/or a fine of $108,000. The maximum penalty for the offence under s 400.3(1) of the Criminal Code is imprisonment for 25 years, and/or a fine of $270,000.

4. An agreed statement of facts pursuant to s 191 of the Evidence Act1995 (NSW) became Exhibit 1 before me. In what follows I have summarised those agreed facts for the purposes of sentence. I have also taken into account all of the other material tendered by the parties on sentence and will refer to it where appropriate.

5. It bears emphasising at the outset that the facts in Exhibit 1 and found by me relate only to Mr Anquetil’s pleas of guilty. Those pleas of guilty and the findings of fact made in relation to Mr Anquetil do not represent findings, even tentative findings, about any of the remaining alleged conspirators or any other person. I do not intend to make and have not made in the reasons any findings about any person other than Mr Anquetil. The other alleged conspirators are presumed innocent of any charge until it is proven otherwise.

Relevant facts

6. In September 2016, the Australian Federal Police (AFP) commenced an investigation into a conspiracy between several persons to dishonestly cause a loss to the Commonwealth (“the Tax Fraud Conspiracy”). The conspiracy existed between about 1 March 2014 and 18 May 2017. It was brought to an end by arrests made by the AFP on 17 and 18 May 2017.

7. The Tax Fraud Conspiracy involved an agreement to cause a loss of tax revenue due to the Commonwealth by deceiving clients into entrusting them with large sums of money for services described as payroll services, when in truth the conspirators intended to misappropriate money that should have been paid to the Australian Taxation Office (ATO). The purpose of the conspiratorial agreement was dishonestly to divert money the conspirators knew was due to the Commonwealth in the form of Pay As You Go Withholding (PAYGW) amounts and Goods and Services Tax (GST).

8. During the offence period, the conspirators collected at least $141,291,923.08 in PAYGW amounts and GST ($104,155,646.95 in PAYGW and $37,136,276.13 in GST). Only $30,883,342.47 was remitted to the ATO and a further $4,783,276.25 was garnisheed by the ATO. The total tax loss caused to the Commonwealth by the failure to remit PAYGW and GST to the ATO was $105,625,304.36.

9. Mr Anquetil, Adam Cranston, Lauren Cranston, Devyn Hammond, Joshua Kitson, Dev Menon, Jason Onley and Daniel Rostankovski were charged with the Tax Fraud Conspiracy. Mr Rostankovski ultimately pleaded guilty to other offences. I have earlier sentenced Mr Kitson and Ms Hammond.

10. Mr Anquetil used various entities to receive, conceal and divert the misappropriated taxes derived from the Tax Fraud Conspiracy for his own benefit and the benefit of other members of the conspiracy, including Adam Cranston, Mr Onley and Mr Kitson.

11. In dealing with the proceeds of crime, Mr Anquetil dealt with not less than $28,192,805.20. From that amount he was the ultimate beneficiary of at least $12,218,148.55.

12. In addition, Mr Anquetil (and others) jointly authorised the payment of $24,244,760.64 that was, and that he believed to be, proceeds of crime as a response to two blackmail demands. Mr Anquetil asks that this dealing in the proceeds of crime be taken into account by the Court in passing sentence on him for count 2 pursuant to s 16BA of the Crimes Act 1914 (Cth).

The Tax Fraud Conspiracy

13. Between February and March 2014, Mr Anquetil, Mr Onley, Adam Cranston, Mr Kitson and Peter Larcombe (now deceased) had meetings in which a scheme was discussed that involved operating a payroll business as a means to misappropriate PAYGW amounts and GST that were payable to the ATO.

14. It was agreed that Mr Anquetil would set up a payroll company and Mr Kitson would help manage and run the company. Mr Kitson was to be responsible for building up the client base for the “front office”, being Plutus, as the payroll company receiving payments from clients. The payroll company, Plutus, was incorporated on 23 April 2014 with Mr Anquetil as the sole office holder.

15. Plutus offered payroll services to legitimate recruiting companies, employers and individual contractors (together, the Client Companies) who wished to outsource their payroll obligations, including the obligation to withhold and remit PAYGW to the ATO. Throughout the period of the fraud, Plutus also collected GST from the Client Companies.

16. Plutus subcontracted these services to companies (the Second Tier Companies) incorporated by other conspirators (primarily, Adam Cranston, Mr Onley, Mr Larcombe and, from February 2015, Mr Menon). These other conspirators would primarily be responsible for managing and making operational decisions regarding the Second Tier companies. By processing the payroll, the Second Tier Companies assumed the Client Companies’ PAYGW and GST liabilities. The conspirators planned to liquidate the Second Tier companies when they accrued too much tax debt. The conspirators used Plutus and the Second Tier Companies to effect the Tax Fraud Conspiracy.

17. Initially a Mr McIntyre, and later Mr Rostankovski, under the direction of Adam Cranston, Mr Menon and Mr Onley, were responsible for recruiting and managing the directors of the Second Tier Companies. The directors and shareholders of the Second Tier Companies were vulnerable people who were paid, bribed and/or otherwise induced under false pretences or without their knowledge to become directors and shareholders (the Second Tier Directors). They were used as directors and shareholders to conceal the involvement of Adam Cranston, Mr Onley and Mr Menon in the Second Tier Companies.

18. Although the Second Tier Directors were ostensibly responsible for the Second Tier Companies, it was the conspirators who maintained full control over these companies. The Second Tier Directors were paid monies to sign documents as and when required and were told no more than they needed to know in order to perform their passive role as the public face of the Second Tier Companies.

19. Lauren Cranston and Ms Hammond operated the Second Tier Companies’ accounts from a “back office”. In their liaisons with Plutus staff, accountants and other third parties, Lauren Cranston and Ms Hammond signed off as the Second Tier Directors or as “bookkeepers” assisting the Second Tier Directors in email communications, and introduced themselves as the Second Tier Directors in telephone communications. Lauren Cranston, Ms Hammond and another associate, Patrick Willmott, were collectively referred to by the conspirators as Omni Payroll.

20. Mr Menon was an accountant and a lawyer, working as a partner at Clamenz Lawyers. Mr Menon played a crucial role in the structural aspects of the conspiracies, ensuring the sub-contracting arrangements and “front office” façade were maintained, and the back office dealings remained hidden. Mr Menon’s role increased over time and by mid-2016 had a significant role in the conspiracy. Mr Menon provided assistance to the conspirators, about various key matters, such the appointment and removal of directors, the dealing with proceeds of crime, and the frustration of the ATO’s investigation into Plutus and the Second Tier companies.

The mechanism of the fraud

21. Plutus entered into payroll services agreements with the Second Tier Companies to create the appearance of legitimate, arm’s length agreements. In reality, the conspirators used the subcontracting agreements between Plutus and the Second Tier Companies as a mechanism to transfer the gross payroll to a group of companies controlled by the conspirators from which the PAYGW amounts and GST could easily be misappropriated.

22. By entering into the subcontracting agreements, the conspirators intended to transfer the PAYGW and GST liabilities to those companies, which could over time accrue these debts to the ATO and eventually be liquidated, leaving the debts unpaid. In the event of any investigation or audit action being undertaken by the ATO, it would be the Second Tier Directors who were responsible for any outstanding tax debt as the legal directors and shareholders of the companies.

Financial Year: July 2014 to June 2015

23. In the financial year from July 2014 to June 2015, the conspirators incorporated Keystone Pay Pty Ltd (Keystone). Keystone was the first Second Tier Company incorporated pursuant to the conspiracy. The following day, Plutus was incorporated with Mr Anquetil as the sole director and company secretary.

24. On 23 April 2014, Mr Anquetil applied to open a bank account in the name of Plutus, with him having sole authority to operate the account. On the same day, an Australian Business Number application was made for Plutus with Mr Anquetil’s details listed as the business and postal address for the company.

25. Mr Anquetil, on behalf of Plutus, later signed a payroll services agreement with Keystone, representing that Plutus entered into payroll services with Keystone from 1 May 2014. Pursuant to this agreement, Keystone was to be responsible for processing payroll funds, including GST and PAYGW amounts and remittance of those amounts to the ATO. To facilitate the payments, Mr Anquetil sent emails to Omni Payroll attaching the Client Companies’ pay runs, Recipient Created Tax Invoices (RCTIs) and pay summaries.

26. In this period of the Tax Fraud Conspiracy, Mr Anquetil undertook the administration of Plutus, with Mr Kitson attending to marketing Plutus. Other conspirators were attending to the administration of the Second Tier Companies. Mr Anquetil’s role in running Plutus included managing and making payments from Plutus’ bank accounts, transferring gross payroll monies received from the Client Companies to Keystone to process payroll, implementing systems and managing correspondence.

27. Mr Anquetil’s responsibility for the administration of Plutus also included setting up software called “KeyPay”, which was a cloud-based payroll compliance tool commonly referred to as “the portal”. It provided a means to separate (and record) gross wages into allocations such as superannuation, PAYGW, other tax and any other employee-required deductions such as salary sacrificing and novated vehicle leasing. KeyPay calculated the PAYGW amounts and other tax to be remitted to the ATO.

28. Between April 2014 and December 2014, Mr Anquetil operated Plutus out of an office at Double Bay, which he shared with Adam Cranston, Mr Onley, Lauren Cranston, Mr Larcombe and Mr Willmott. Mr Anquetil represented that Plutus had an arms-length business relationship with Keystone.

29. From approximately October 2014 onwards, Plutus hired staff to calculate and verify payroll data through KeyPay, by manually entering data, verifying RCTIs against client payments and then on-sending the RCTIs and pay summaries to Omni Payroll, for them to process payroll. This was at Mr Anquetil’s and Mr Kitson’s instruction and direction. Later, this became an automated process.

30. In January 2015 Mr Anquetil represented that Plutus charged zero fees for providing payroll services because it made money from marketing other financial services. Consistently with this, Mr Anquetil advised Plutus employees that Plutus managed to make profits (notwithstanding no fees) through a “separate arm of the company” and “marketing other financial services”.

31. From February 2015, Plutus hired further employees, including Tim Fox who was hired as a “payroll manager” and began to manage or administer payroll via KeyPay under the direction of Mr Anquetil and Mr Kitson. Mr Fox was advised that separate company “Omni” would process the contractors’ pay and that Omni made revenue from other clients and low interest arrangements with banks, and paid a portion of these monies back to Plutus. Mr Anquetil and Mr Kitson advised Plutus employees not to inform Plutus’ clients of its subcontracting arrangement with the Second Tier Companies.

32. In approximately February 2015, Mr Kitson asked Mr Anquetil what would happen when the ATO starts “chasing the tax debt in the bottom company” to which Mr Anquetil responded with words to the effect of “before that happens, the boys will arrange a friendly liquidator who they pay off to liquidate the company. Jay knows plenty of dodgy liquidators”.

33. By June 2015, Plutus had opened a Canberra office and its staff numbers grew. Plutus had approximately 200 legitimate contractors who were having their income processed through Keystone bank accounts. Roughly $2.8 million to $3 million in collected payroll monies passed through from Plutus to Keystone each month. In June 2015, financial records show that Plutus received $2,685,631.61 from legitimate client companies and the total amount transferred to Keystone in the same month was $2,692,248.89.

34. In the course of the 2014-2015 financial year, Keystone only lodged three BAS statements and the ATO issued statements of account for overdue amounts. In May or June 2015, Mr Anquetil, Mr Onley and Mr Kitson discussed the need for Keystone to be liquidated. Mr Onley stated that “[i]t can’t be allowed to build up any more tax debt”.

35. Because the name of Keystone would no longer appear on payslips or payment summaries, Mr Kitson, Mr Onley and Mr Anquetil agreed that “our generic prepared response to any question from a contractor was Plutus had undergone a corporate restructure as it continued to grow.”

36. At a later time, the ATO made a decision not to pursue $6,903,899.06 owed to it by Keystone as it was deemed irrecoverable.

37. The total loss to the Commonwealth pursuant to the Tax Fraud Conspiracy in the 2014-2015 financial year was $4,040,351.54.

Financial Year: July 2015 to June 2016

38. During the second year of the fraud, Mr Anquetil continued to oversee and run Plutus. In early July 2015, Mr Anquetil told Mr Kitson that Keystone would be replaced by two companies to avoid increased interest from the ATO. Previously, in April and May 2015, Adam Cranston and Mr Onley, with the assistance of Mr Menon, managed the incorporation of Uneek Consulting Services Pty Ltd (Uneek) and Sonar Consultants Pty Ltd (Sonar). Mr Anquetil was responsible for changes to the payroll system.

39. On 23 June 2015, Mr Anquetil sent an email to the named director of Uneek, Mr Spencer, requesting insurance information and enclosing a draft payroll services agreement. Under the agreement, Uneek was responsible for processing payroll funds on behalf of Plutus and remitting PAYGW and GST to the ATO. The agreement was represented as being signed on 1 July 2015, but was only signed in 2017 to seek to legitimise the subcontracting agreement when the ATO audit was being conducted.

40. Mr Rostankovski subsequently arranged for the initial directors of Uneek and Sonar to be replaced by individuals he had recruited on the promise they would be paid to be directors.

38. Whilst Mr Anquetil controlled the Plutus bank account and managed the client company funds deposited into the account, he provided updates to Mr Onley. For example, on 7 August 2015 Mr Anquetil sent a text message to Mr Onley confirming “[w]e cracked $1m this week mate”. This is consistent with the AFP forensic accountant’s calculations which show that by 7 August 2015, the legitimate clients had transferred a total of $1,217,142.25 to Plutus. This was the first time Plutus had received $1 million in a single week.

39. On 14 March 2016, Adam Cranston and Mr Onley had incorporated Synep Limited (Synep) and they, along with Mr Stephens, were appointed as directors. There were two shareholding entities of Synep, one owned by Mr Onley’s wife, the other by Adam Cranston and his wife. Despite being appointed as a director, Mr Stephens played no role in the operations or decision-making of Synep.

40. On 1 June 2016, Mr Onley and Adam Cranston arranged for Synep to enter into a share sale agreement with Plutus under which Synep would purchase Plutus from Mr Anquetil for $5 million. The share sale agreement was signed by Mr Anquetil, Adam Cranston and Mr Onley, and witnessed by Mr Menon. After that, a friend of Mr Onley replaced Mr Anquetil as the director of Plutus. That friend, Mr Buckner, was told by Mr Menon and Mr Onley that Mr Anquetil would continue to have a role in Plutus after the sale of the company to Synep.

41. Mr Anquetil discussed with Mr Kitson that Mr Anquetil would need to step away as CEO of Plutus once it was sold. Mr Anquetil told Mr Kitson that it would be preferable to create an executive team with three general managers (Mr Kitson, and the Plutus employees Mr Munk and Mr Fox) at an equal level. This was implemented shortly after the sale of Plutus.

42. Mr Anquetil continued to manage the operations of the business and continued to have access to Plutus’ accounting system (hosted on Xero, a cloud-based accounting service) as well as transactional access to Plutus’ bank accounts throughout the conspiracy. Whenever questions were raised by administrative staff about Mr Anquetil’s ongoing involvement, they were told he was consulting for Plutus at the request of Synep’s board members.

43. On 16 June 2016, Adam Cranston and Mr Onley, with the assistance of Mr Menon, managed the incorporation of five new Second Tier Companies.

44. The amount of tax misappropriated in the 2015-2016 financial year was $43,997,137.69.

Financial Year: from July 2016

48. During this third and final year of the Tax Fraud Conspiracy, Mr Anquetil continued to oversee and run Plutus. Adam Cranston, Mr Onley and Mr Menon oversaw Plutus’ operations via Synep which they controlled, as well as managing the Second Tier Companies.

49. Regular $250,000 payments were made from Plutus to Synep, which over time were reduced to $125,000. To facilitate these payments, Plutus would generate RCTIs on behalf of the Second Tier Companies which misstated the figure payable by Plutus.

50. Mr Anquetil had reduced involvement in the operations and advised the other conspirators in relation to the financial management of Plutus, despite representing to some people he was no longer involved in an executive capacity.

51. Between July and September 2016, Mr Anquetil had several meetings with Mr Onley and Mr Kitson about the pressure to liquidate Plutus. They discussed the need to represent that Plutus legitimately generated income. Mr Kitson developed a product, offered to smaller recruitment agencies, whereby Plutus would charge a payroll service fee of 1% per month. A number of Plutus’ clients started to use this product.

52. On 27 October 2016, as part of an exchange of messages between Mr Anquetil and Mr Kitson, Mr Kitson referred to Mr Onley asking to move money to Synep from Plutus. Mr Kitson said he had told Mr Onley they “weren’t holding anything (other than the float for funding)”. Mr Anquetil agreed and said that he wanted at that stage to “keep everything above board” and meet company tax obligations, before getting money that had already been diverted out “when appropriate in clever ways”.

53. In November 2016, Mr Anquetil set about automating the Plutus Cut. On 7 November 2016, Mr Anquetil commissioned a software developer in Indonesia to develop a program that automatically extracted data from the RCTIs received by Plutus from Client Companies and posted it to Plutus’ Xero platform. Mr Anquetil requested a formula be added so that a percentage would be deducted from the gross payroll and the adjusted figures would be posted to Plutus’ Xero platform. This enabled the Plutus Cut to be calculated automatically and taken from the gross payroll before the remainder was transferred to the Second Tier Companies. On Plutus’ Xero platform, the amounts would be recorded as if the gross payroll received was less than the actual figure.

54. The software was hosted on an Amazon Web Services server and Mr Anquetil was the only individual who knew the location and could control the software. When Ms Hammond noticed discrepancies caused by the Plutus Cut causing Mr Fox to question Mr Anquetil, Mr Anquetil conveyed a false explanation to him and discussed with Mr Onley arrangements to ensure Ms Hammond told Mr Fox she had been mistaken about the figures.

55. In late November or early December 2016, Mr Kitson consulted with Mr Anquetil and Mr Menon about concerns that Mr Onley, Adam Cranston or “Omni” may spend superannuation monies held in the accounts of the Second Tier Companies. Mr Kitson’s concern was that the scheme was more likely discoverable by contractors if their superannuation contributions were not paid on time. Mr Anquetil and Mr Kitson withheld the superannuation payments “as a safety precaution” and the payments would be transferred to the Second Tier Companies to process as they were due. A spreadsheet with the superannuation account details for each of the seven Second Tier Companies, and tabs outlining superannuation payments in January, February and March 2017, were located on a device seized from Mr Anquetil’s residential premises.

Discovery of the conspiracy

56. Between December 2016 and January 2017, garnishee notices were issued by the ATO against the Second Tier Companies and penalty notices and garnishee orders were issued against the Second Tier Directors of Uneek and Sonar. On 24 January 2017, Mr Anquetil was issued with a default tax assessment, penalty notice and garnishee notice. The following day, the conspirators discovered that the bank accounts of the Second Tier Companies had been frozen.

57. On 7 February 2017, Mr Anquetil told Mr Menon, Adam Cranston and Mr Onley that, in a voluntary interview he had just attended with ATO, he had “played the Peter Larcombe story”, meaning that he had blamed the conspiracy on Mr Larcombe who was by then deceased. Mr Onley said that is “what we need”. As part of this discussion, Mr Onley said it is worse if the ATO “start to think of it actually as a scheme”. Mr Anquetil said he did not mention the name Synep and did not offer any information about it, apart from referring to the “buyers” of Plutus. Mr Anquetil said he lied when asked specifically how Plutus earned its money.

58. Also on 7 February 2017, in conversations between Mr Anquetil and Adam Cranston, Mr Menon said that “[the ATO] will never be able to trace anything … Like anything you can justify commercially, right.” Mr Menon told the conspirators that they would have to ensure that they paid tax and that the people (apparently referring to the named directors of the Second Tier Companies) did not hurt them.

59. On 20 March 2017, Mr Kitson, Mr Anquetil and Mr Menon discussed how to remove and destroy incriminating electronic data and Mr Anquetil and Mr Kitson agreed that having non-contentious emails from a certain date onwards would be beneficial. Mr Menon suggested Mr Anquetil could feign ignorance over the finances. Mr Anquetil said he could claim that a fee was charged and not paid, and they discussed how the finances could be concealed.

60. On 26 April 2017, the ATO issued Plutus with a Notice estimating that company’s PAYGW liability as $21,858,801. The ATO also issued garnishee notices on bank accounts operated by Plutus. Mr Anquetil attended a meeting with Mr Kitson, Mr Onley and Mr Menon in which they strategised how to respond, including preparing an objection in reply to the ATO (at Mr Anquetil’s request it was signed by Mr Menon), and scheduling to inform clients on the coming Monday that payroll services would cease from thereon in.

61. On 3 May 2017, Mr Anquetil and Mr Kitson attended the Plutus office and “wiped clean” five laptops, and inserted a tool, “cipher.exe”, to ensure no data could be recovered. They placed a link to the Network Attached Storage (NAS) drive on the desktop of the laptops, to make it appear as if that drive was always used by staff (rather than Google Drive which they had been using). Instead of destroying the NAS as had been discussed, Mr Anquetil encrypted that drive, and made it seem as if the NAS drive had been hacked. Mr Anquetil also investigated ways to delete all the email mailboxes.

62. In May 2017, Mr Anquetil contacted the Indonesian software developer and instructed him to remove the payment data held on Plutus Payroll’s Xero account in relation to the Second Tier Companies and replace it with meaningless data. This work was never performed.

63. The total amount of tax misappropriated in the 2016-2017 financial year was $57,587,815.12.

64. The Tax Fraud Conspiracy concluded after the AFP arrested a number of the conspirators on 17 and 18 May 2017.

The blackmail demands

65. On 1 February 2017 at Clamenz, one of the conspirators, Mr Rostankovski, with others, made a blackmail demand of the other conspirators for $5 million. He falsely represented he was acting on the instructions of directors of the Second Tier companies and threatened media exposure of the scheme and violence.

66. Mr Anquetil attended a series of meetings with the other conspirators to discuss their response to the blackmail demand during which they agreed to pay the $5 million and decided to draft a deed to conceal the payment.

67. After the $5 million was paid, a further blackmail demand was made for an additional $20 million. Again, Mr Anquetil agreed with the other conspirators to pay the demand, and they drafted a second deed to conceal the arrangement. Over 12 weeks, a total of $24.24 million of monies owed to the ATO was transferred from Plutus to a law firm, Lands Legal, in answer to the blackmail demands.

Mr Anquetil’s knowledge of the extent of the fraud

68. Plutus regularly lodged Business Activity Statements (BAS) for every quarter from the period ending 30 June 2014 to 30 June 2016. From July 2016, Plutus lodged a BAS every month. The BAS were prepared by Essentia Partners and emailed to Mr Anquetil for approval. Each BAS recorded the total sales for Plutus for the relevant period.

69. During a conversation at Clamenz on 7 February 2017, Mr Anquetil participated in discussions about the extent of the tax diverted to date including the following:

“Mr Menon: You know, between all of them [the Second Tier Companies] we’re talking about maybe 130 million in tax debt.

Mr Anquetil: Yeah.

Mr Menon: [by reference in part to default assessment] … and that’s already at 50 million, plus Uneek and Sonar’s are at 40 million between both of them. You’re talking about 130, 140 million … and so a 130, 140 million remains unpaid from these 7 bottoms [the Second Tier Companies] and someone’s going to have to take liability for that.”

Mr Anquetil’s dealings in the proceeds of crime

70. Mr Anquetil dealt with the proceeds of the tax fraud in the following ways:

1. Mr Anquetil dealt with at least $14,397,622.98 which were monies obtained pursuant to the Tax Fraud Conspiracy transferred into an account controlled by Mr Anquetil named Media and Marketing Group (Aust) Pty Ltd (MMG). Mr Anquetil further dealt with money from this account by transferring monies back to Plutus, transferring monies for the benefit of Mr Onley, Adam Cranston and Mr Menon and directly using the funds to pay for Plutus’ operational expenses and using the remainder for his ultimate benefit.

2. In addition to MMG, Mr Anquetil used a number of other companies to deal with an additional $13,795,182.22 ultimately for his benefit and for the benefit of other conspirators in the Tax Fraud Conspiracy.

3. Mr Anquetil, together with the Tax Fraud conspirators, agreed to use the proceeds of the tax fraud to pay the blackmail demands. As I have explained, Mr Anquetil jointly dealt with $24,244,760.64, transferred to the trust account of the law firm, Lands Legal, over a period of 12 weeks in payment of the demands, which were disguised as payments pursuant to deeds.

71. Mr Anquetil dealt with at least $28,192,805.20. Of that amount, Mr Anquetil was personally the ultimate beneficiary at least $12,218,148.55.

72. In addition to Mr Anquetil’s dealings in the $28,192,805.20 and $24,244,760.64, Mr Anquetil was aware that monies approximating $6,392,629.10 were transferred by his co-conspirators from the Second Tier companies back to Plutus for its operating expenses. Mr Anquetil used funds from the Plutus accounts for payment of expenses for example, business class travel and hotel accommodation, which was required for the successful operation of Plutus.

73. Mr Anquetil also agreed with Adam Cranston and Mr Onley that regular payments would be made from Plutus to Synep for the benefit of Adam Cranston and Mr Onley. As a result, $7,867,500 was transferred to Synep from the Plutus company account.

Money laundering through MMG

74. On 10 April 2014, Mr Anquetil incorporated MMG. He was the sole director and company secretary. He was the authorised signatory of MMG’s bank account, and the director and named addressee on MMG’s bank statements. In 2017, Mr Anquetil explained to Adam Cranston that “the whole reason we opened MMG in the first place”, “was Jay [Mr Onley] asked me to move some money … Jay said I need a new bank account for his new company”.

75. From April 2014 until around July 2015, Mr Anquetil issued invoices on behalf of MMG, most of which were for the performance of legitimate services but some were hyper inflated on Mr Onley’s instructions. From the time that MMG began to be used to receive Plutus’ share of the conspiracy (around 1 July 2015), it was no longer performing any legitimate services.

76. While Mr Anquetil may have initially created MMG for the purpose of laundering monies at the request of Mr Onley, the vehicle was also used for his own benefit. $2,054,289.08 of the $14,397,622.98 proceeds dealt with via MMG was for Mr Anquetil’s personal benefit.

77. The Tax Fraud proceeds were transferred to MMG from Plutus and the various Second Tier companies disguised as the payment of invoices. They were false invoices and were issued by or at the direction of Mr Anquetil.

78. From 1 July 2015, Mr Anquetil started issuing MMG invoices to Uneek and Sonar. Mr Anquetil sent logos and bank details to Essentia Partners to create invoice templates.

79. In 2016, Mr Anquetil sought to distance himself from MMG and removed himself from the officeholder positions in MMG and transferred his shares. On 1 May 2016, Ms Ellem replaced Mr Anquetil as sole shareholder and director of MMG. Ms Ellem was a director in name only, never having consented to being a director and not knowing Mr Anquetil. Ms Ellem had no knowledge of, or control of, any shares associated with MMG and throughout the entire period of the scheme Mr Anquetil remained in true control of MMG.

80. On 7 February 2017, Mr Anquetil attended a meeting with his tax fraud co-conspirators at Clamenz and discussed his voluntary interview with the ATO. Mr Anquetil confirmed he falsely told the ATO that MMG got paid because he was providing marketing services for Uneek and Sonar.

Money laundering through other entities

81. Mr Anquetil also directed payments to be made from the Plutus Payroll account to Mr Anquetil’s other companies under the guise of payment for false invoices and/or loans. These monies were then either further dealt with by Mr Anquetil for the benefit of other conspirators, or retained for himself and used via direct purchases, including by debit card, cash withdrawals or further transfers to Mr Anquetil’s personal bank accounts.

Mr Anquetil’s financial gain

82. Mr Anquetil was the ultimate beneficiary of not less than $12,218,148.55 of tax fraud proceeds comprised of:

Description

Amount

Mr Anquetil’s various personal

accounts

$6,063,839.70

SPA Ventures Pty Ltd

$3,771,225.53

Media and Marketing Group

$2,054,289.08

Net Salary from Plutus Payroll

$250,531.68

Tech Pilot Fund

$78,272.56

Total

$12,218,148.55

[redacted]

83. [redacted]

84. [redacted]

Consideration

85. The offender is to be sentenced for the offences against Commonwealth law and the Court is required to apply the terms of Part IB of the Crimes Act 1914 (Cth). The governing principle under s 16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant.

86. Given the length and detail of the submissions made by the Crown and the offender I will deal with the respective submissions when addressing each of the matters required to be taken into account by Part IB of the Crimes Act.

87. The offences with which Mr Anquetil is charged, s 135.4(3) of the Criminal Code, carries a maximum penalty of imprisonment for 10 years and/or a fine of $108,000 and the offence under s 400.3(1) of the Criminal Code is imprisonment for 25 years, and/or a fine of $270,000.

88. The maximum penalty serves as a yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. It is important to have regard to the maximum penalty to determine the degree to which the offender’s conduct offends against the legislative objects of ensuring compliance with taxation laws and preventing money laundering. I take the maximum penalty in each case into account as an important guidepost.

89. I turn now to the list of factors I must take into account under s 16A(2) of the Crimes Act. I will ignore those factors that the parties agreed did not apply here.

Section 16A(2)(a): The nature and circumstances of the offences

90. The Tax Fraud Conspiracy is objectively one of the most serious offences of its kind to come before a court in this country. Over $105 million was lost to the Commonwealth. The Tax Fraud Conspiracy involved a very high level of sophistication, premeditation, planning and a very significant degree of dishonesty:

1. the conspiracy involved the incorporation and management of numerous corporate entities through which the conspiracy was implemented and which concealed the conspirators’ involvement;

2. the conspirators maintained the success of the conspiracy by holding out Plutus as a legitimate company in order to attract a large number of legitimate clients together with an effective “back office” that processed the thousands of payroll payments and disbursed the proceeds;

3. the conspiracy involved the drafting of a number of legal agreements between Plutus and the Second Tier Companies to seek to establish a “paper trail” and thereby create the appearance of legitimacy;

4. the clients that engaged Plutus to perform the “payroll services” were not informed that this service was subcontracted to the Second Tier Companies;

5. the staff that worked for Plutus (other than the conspirators) were not aware of the true nature of the business and were deliberately misled about how Plutus operated; and

6. vulnerable people with little or no knowledge or experience of the corporate world were appointed as directors of the Second Tier Companies to provide a layer of concealment and create the appearance that the subcontracting arrangement was at “arm’s length”. In reality, these directors had no role in managing the companies of which they were directors. It was intended by the conspirators that upon detection of the conspiracy the directors of the second tier companies would be held responsible for any outstanding tax liability.

91. Mr Anquetil was a principal of the conspiracy. The scheme to defraud had been devised by Messrs Onley, Anquetil, Cranston, and Larcombe. Messrs Kitson and later Menon were also heavily involved the evolution of the scheme. The principal participants devised the scheme between February and March 2014. The offender was one of the key architects of the conspiracy. He operated at the apex of the hierarchy of offenders involved in the scheme. Throughout the life of the conspiracy the offender performed a critical role, directing the actions of co-conspirators and unknowing participants alike. His actions were important in the conspiracy’s success, scale and longevity.

92. The objective seriousness of the money laundering offence is determined principally by the duration, quantum and conduct engaged in to effect the money laundering. I reject the submission of the Crown that the objective seriousness of the money laundering offence is at the highest level. It was not at the very top of the range. Having said that, I also reject the offender’s submission that the offence falls above, but not significantly above, the mid-range of seriousness for this type of offence.

93. In this case, the objective seriousness of the money laundering offence is well above the mid-range of objective seriousness for offences of this kind. Mr Anquetil’s dealings with proceeds of crime were sophisticated, organised and diverse. They involved the incorporation of, and use of existing corporate entities to transfer the proceeds of the Tax Fraud Conspiracy for his own benefit and the benefit of other conspirators. The offender engaged directly with co-conspirators with respect to the movement of these funds.

94. In order to disguise the transfer of funds, the offender issued, or directed the issue of, false business records. These included, for example, invoices purporting to evidence marketing services provided by MMG to the Second Tier Companies involved in the conspiracy. Whilst it is correct, as the offender submitted, that most of the money which was laundered by the offender did not go overseas, I do not think that effects a significant reduction in the objective seriousness of the conduct.

95. The offender himself dealt with not less than $28,192,805.20. In addition, the offender was aware that monies approximating $6,392,629.10 were transferred by his co-conspirators from the Second Tier Companies back to Plutus for its operating expenses. The offender also agreed with Adam Cranston and Mr Onley that regular payments would be made from Plutus to Synep for their benefit. He was aware that regular payments of $250,000 were made from Plutus to Synep which resulted in a total payment of $7,867,500.

96. The amount of money involved and the length of time over which the offending occurred are significant relevant considerations when determining the objective seriousness and gravity of fraud-related offending: R v Hawkins (1989) 45 A Crim R 430. In furtherance of the money laundering conspiracy, Mr Anquetil was responsible for facilitating the laundering of $28,192,805.20 of tax fraud proceeds from the 2nd tier companies to other companies and individuals, principally for the benefit of the principal conspirators, including himself.

97. The amount of money laundered by the offender in this case is towards the upper range of offences previously dealt with by any court in this country. The offender was the ultimate beneficiary of not less than $12,218,148.55. The motivation for the offending was at all times financial reward. The offences were not committed out of need, but out of greed.

Section 16A(2)(b): other offences (if any) that are required or permitted to be taken into account

98. For the money laundering offence to which the offender pleaded guilty, an additional offence as detailed on the s 16BA schedule of jointly dealing with the proceeds of crime is to be taken into account.

99. The existence of the offending to be taken into account means that the Court should give greater weight to the community’s entitlement to extract retribution in the form of punishment for the admitted offending: Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [18] and [42]. These principles were stated in relation to NSW legislation but have been held to be equally applicable to s 16BA of the Crimes Act 1914 (Cth): R v Lamella [2014] NSWCCA 122 at [48]; Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244.

100. I accept the Crown submission that this payment was not made under duress. I do find, however, that whilst this offence was principally committed to seek to avoid detection of the crimes which the offender had committed, a part of the offender’s motivation in committing this crime was a fear of threats made to him by people which he believed were linked to criminal organisations. This is relevant, to a limited extent, to the assessment of the nature and circumstances of the offence in that it bears on the moral culpability of the offender.

101. The schedule offence is above the mid-range of objective seriousness for offences of this kind. In this case, the admitted offending represents significant additional criminality. The objective seriousness of the offence is determined having regard to the following:

1. the amount of money involved ($24,244,760.64, being more than 24 times the $1 million threshold for an offence contrary to s 400.3(1));

2. the sophistication of the conduct, with the offender agreeing to disguise the blackmail payments as being made pursuant to a deed; and

3. the length of time over which the offending occurred, 12 weeks.

102. Although attached to count 2, the money laundering offence, and appropriately taken into account in relation to that offending, the s 16BA offence constitutes discrete and serious criminal conduct of a nature that is different to the principal offence. The sentence for the money laundering offence will reflect the total criminality and will result in a higher penalty than that which would otherwise have been appropriate for the principal offence considered alone.

Section 16A(2)(c): 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

103. In R v Agius; R v Zerafa [2012] NSWSC 978; (2012) 87 ATR 528 at [62] Simpson J found that the offenders in a conspiracy to defraud the Commonwealth, which included the filing of false income tax returns over a number of years, had engaged in a course of criminal conduct for the purposes of s 16A(2)(c).

104. The offender’s conduct in this case occurred over more than three years. It was a persistent course of conduct involving a series of serious criminal acts of the same character. It was not an isolated instance nor was it not spontaneous or opportunistic.

Section 16A(2)(e): Any injury, loss or damage resulting from the offence

105. The injury suffered by this offending is a collective financial injury suffered by all Australians. The loss to the Commonwealth of over $100 million will need to be made up from additional taxes levied on other taxpayers or by cuts to government spending.

106. In a time such as the present, when the calls on services which are supplied by government are as urgent as they have been at any time since the Great Depression, the loss over $100 million which would otherwise have been available to fund those services is a very significant injury suffered by all Australians.

107. The injury that is suffered is even greater than its immediate financial consequences. There is no doubt that revenue fraud on the scale here has a corrosive effect on our society. Offences such as these may lead to a collective loss of confidence in the efficacy and integrity of the taxation system, to the detriment of us all. There is also a very considerable, unrecoverable cost incurred by the Commonwealth in protecting its revenue and detecting fraud such as this: R v Host [2015] WASCA 23; (2015) 248 A Crim R 352 at [24] per McLure P.

Sections 16A(2)(f) and (g): The degree to which the person has shown contrition for the offence and the offender’s plea of guilty

108. A significant factor relevant to the extent of any discount or reduction in sentence is the timing of the plea, and whether it was entered at the first reasonable opportunity.

109. The offender was arrested and charged with the Tax Fraud Conspiracy on 18 May 2017, and was charged with respect to the money laundering in July 2018. On 26 November 2019, in the Local Court, the offender entered pleas of guilty and was committed to the Supreme Court for sentence.

110. Given the complexity of the brief of evidence and nature of the charges with which the offender was charged, the Crown submits and I accept that the pleas were entered at an early opportunity.

111. I am satisfied that the offender’s plea of guilty is a genuine demonstration of his remorse and contrition and ought to be recognised as such. The offender’s clear remorse is apparent also in the subjective material led on his behalf, [redacted].

112. The offender’s plea was entered before the Local Court, and accordingly, the offender should be afforded a significant discount to acknowledge his willingness to facilitate the course of justice, as well as the utilitarian value of the plea: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [269]-[278]. The utilitarian value of the offender’s pleas of guilty is significant, given the size of the brief of evidence, the complexity of the issues and the likely length of the trial.

113. I propose to apply a 25% discount on the sentence which I would otherwise have imposed on Mr Anquetil to reflect all of these matters.

[redacted]

114. [redacted]

115. [redacted]

116. [redacted]

117. [redacted]

118. [redacted]

119. [redacted]

120. [redacted]

121. [redacted]

Sections 16A(2)(j) and (ja): The deterrent effect that any sentence or order under consideration may have on the person or on other persons

122. It was common ground that general deterrence is a fundamental consideration in the present sentencing exercise. This is because fraud on the Commonwealth revenue is easy to commit, difficult to detect and comes at a great cost to the community.

123. In addition, money laundering is itself a serious criminal activity, vital to the success of the fraud in this case, because it moved the proceeds of crime to third parties, making the detection of the underlying crime more difficult: Shi v R [2014] NSWCCA 276; (2014) 246 A Crim R 273 at [109]. It also prevents the recovery of funds even if the original fraud was detected.

Section 16A(2)(k): The need to ensure that the person is adequately punished for the offence

124. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all available sentences, is satisfied no other sentence is appropriate in all the circumstances of the case. Sentences for offences in the nature of tax evasion should have both a deterrent and punitive effect. This is particularly so in cases such as the present where the fraud is calculated and systematic, and persisted for some time.

125. As the Victorian Court of Appeal said in Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145:

“[57]   A sentence imposed for fraud upon the taxation revenue is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be censured through manifest denunciation.”

126. I have concluded that a sentence of full-time imprisonment is the only appropriate sentence to impose in this case. Given the gravity and objective seriousness of the offending, a significant sentence of full-time imprisonment should be the starting point before the application of relevant discounts. Senior Counsel for Mr Anquetil accepted that the imposition of a full-time custodial sentence was here inevitable.

127. Having regard to the substantial loss occasioned by the offending, the length of the offending, the acts carried out by the offender, his attempts to conceal the offending, the sophistication and premeditation involved and the need for general deterrence, this is case where a substantial term of fulltime imprisonment must be imposed.

Section 16A(2)(m) and (n): The character, antecedents, age, means and physical or mental condition of the person and the prospects of rehabilitation of the person

128. The offender is a person of prior good character and prior character is relevant to his prospects of rehabilitation: Ha v R [2008] NSWCCA 141 at [43]. I take into account Mr Anqutil’s prior good character, both in a positive and negative sense. In making that finding I reject the offender’s submission that Mr Anquetil’s positive good character case is relevantly distinguishable from Mr Kitson’s equally impressive case of positive good character.

129. The significance of this finding is, however, limited. In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [410] it was explained, not for the first time, that in white collar cases, which include fraud and money laundering, an offender’s prior good character is of reduced significance as that good character normally places an offender in a position where they are able to commit the offence. That conclusion is borne out by the evidence in this case which shows that good character placed the offender in a position where he was able to commit the offences.

130. I make the following findings about Mr Anquetil’s subjective case.

131. Professor Stephen Woods, a forensic psychologist, provided a report. The Crown objected to its essential conclusions but I eventually made by consent a limiting order under s 136 of the Evidence Act that those passages should be understood as conveying that Mr Anquetil’s presentation was consistent with a person suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, within the meaning of DSM 5. Understood in the limited way I have described, Professor Woods also came to the following conclusions about the offender:

“Mr Anquetil will, I believe, suffer a greater level of hardship than might otherwise be the case with persons convicted of a criminal offence by virtue of:

i.   His social background;

ii.   Fear in relation to retaliation/retribution by his co-accused and/or other persons; and

iii.   His level of shame, guilt, and remorse, but particularly with regard to the hardships and his wife and children will suffer as a result of his behaviour.”

132. I take Professor Woods’ report and its conclusions into account but I propose to give those conclusions relatively little weight. Senior Counsel for Mr Anquetil accepted there was no causal connection between any mental health issue and the offending behaviour. There is, in my view, far more cogent evidence than that contained in Professor Woods’ report about the matters referred to by Professor Woods, particularly regarding the offender’s level of shame, guilt, and remorse.

133. I am not satisfied that Mr Anquetil’s presentation as being a person suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood warrants particular weight in mitigation of penalty. The mental health issues Professor Woods describes are really part of the offender’s subjective background and circumstances and I take them into account in that way.

134. As part of the mental health issues I also take into account:

1. the report of George Haralambous, who the offender has been attending psychological therapy sessions with since 6 March 2019, who described the offender as “an actively engaged and motivated participant in the therapeutic process”; and

2. the report of Fleur Taylor, who the offender attended counselling sessions with throughout 2018, who described the offender as “committed to engaging in any counselling homework due to his motivation to improve his psychological wellbeing”.

135. I take into account the following medical reports which were provided:

1. the letters of Dr Phillip Cremer, of North Shore Vertigo & Neurology Clinic, dated 18 March 2020, 30 March 2020 and 27 July 2020 which demonstrate that Mr Anquetil suffered left-side labyrinthitis in June 2016 from which he has not recovered. Dr Cremer notes that Mr Anquetil will require lighting at all times in prison and, at times, repositioning treatment for episodes of vertigo. Dr Cremer also notes that a sleep study report states that Mr Anquetil has severe obstructive sleep apnoea, which generally requires the use of a CPAP machine. I find that both the likely use of the CPAP machine and the need for periodic repositioning will make the offender’s time in custody more onerous;

2. the letter of Dr Lauren Cross, of Moorebank Family Medical Practice, dated 1 July 2020, which lists the medical conditions suffered by Mr Anquetil and the plans for ongoing monitoring of those conditions. These diagnoses do not add in any significant way to the finding I have already made about the offender’s likely experience of custody as a result of labyrinthitis and the use of the CPAP machine, but I nonetheless take them into account; and

3. the medical report of Clinical Associate Professor Adrian Gillin, dated 5 April 2020, which states that Mr Anquetil’s kidney function remains normal.

136. I take into account the character references which were tendered:

1. Cheree Banister, the mother of his son, Aaron, described Mr Anquetil as “an amazing father to Aaron” and a “fantastic friend to me and my family”. Ms Banister described the “very close friendship” and the “family unit” she has maintained with Mr Anquetil since they had their son when they were 19 years old;

2. Melanie Anquetil, Mr Anquetil’s wife, said that he is a beloved husband. Mrs Anquetil expressed concern for their newborn daughter, Cadence, who will not have her remarkable father around and that she looks forward to having her loving husband back in her home;

3. Emmanuel Anquetil and Marie-Noelle Anquetil, described their sons generosity of time and spirit and his deep regret that his crime involved money that would have been used by the government for societal common good;

4. Philippe-Marc Anquetil, Mr Anquetil’s older brother, described starting an accessible music and mentoring program for disadvantaged high school students with the offender and said it is just one of the many social impact projects founded by the offender. He said that their family remains dedicated to supporting the offender;

5. Father Shane Kelleher, who is the parish priest of Mr Anquetil’s parish, said that Mr Anquetil has made regular contributions to music in his parish and that he has seen Mr Anquetil’s connection with the parish continue to grow;

6. Lachlan Mullane, who has been a close friend of Mr Anquetil since they were in year 8, said that he has sought business advice from Mr Anquetil and that he values Mr Anquetil’s “honesty, business acumen and strategic thinking”. He said that Mr Anquetil has expressed regret that less tax revenue means that the government is not able to provide necessary services to the community;

7. Gina Grimaldi, who has been a friend of Mr Anquetil for 20 years, described how Mr Anquetil donated $5,000 to a film she made about environmental conservation of the sea and said he gave her advice on the project and introduced her to other potential benefactors;

8. James Digby, who met Mr Anquetil at a global start-up competition in 2013, said that through Mr Anquetil’s ventures and start-ups, they actively supported numerous mental health charities, women’s empowerment organisations, education programs and ethical fashion companies;

9. Daniel Price, who has known the offender personally and professionally since 1999, said that Mr Anquetil sponsored a cycling race that Mr Price participated in in support of a mental health charity. The event raised over $65,000;

1. Peter Edmunds, a high school friend of the offender, said that Mr Anquetil is a qualified secondary school teacher and that his commitment to education is emphasised by his volunteer work with the charitable organisation Story Factory; and

2. Siegfried Cheng, who worked for Mr Anquetil as a marketing assistant at his company Tech Pilot Fund in 2015, said that Tech Pilot Fund was highly active in the start-up community and that the Fund supported charitable organisations such as a sporting program for vulnerable Indigenous youth, various arts initiatives and mental health charities. Mr Cheng also listed more than 10 social impact businesses that Mr Anquetil has invested in or offered to invest in.

137. I take all of the matters in these references into account in Mr Anquetil’s favour.

138. I am cautiously optimistic that the offender will not re-offend. I initially hesitated to make this finding because on all the evidence the undoubted good works and community contribution made by Mr Anquetil started at a time when he was involved in a cynical and destructive fraud on a massive scale upon his fellow Australians. Nevertheless, having reflected on all of the evidence, I am satisfied that the offender appears now to have adopted a different outlook in life. I therefore find that the offender has good prospects of rehabilitation.

139. Mr Anquetil is a person of obvious acute intelligence and ability who enjoys the continued support of a close and loving family and friends. His approach to these proceedings indicates both genuine remorse and insight into the corrosive effect of his offending behaviour. Since the offending concluded, he has found useful and worthwhile endeavours and provided assistance to others. There has been no further offending in the period since the conspiracy was uncovered in May 2017.

Section 16A(2)(p): The probable effect that any sentence or order under consideration would have on any of the person’s family or dependents

140. In the absence of exceptional circumstances, potential hardship to Mr Anquetil’s family does not effect any substantial reduction in a sentence of imprisonment. I find that no exceptional circumstances exist. Accordingly, this principle was not enlivened.

141. The probable effect of the sentence upon the offender’s family and dependants remains, however, a relevant factor to take into account as part of the general mix of subjective factors and I take it into account in that way.

142. I accept that this is the offender’s first time in prison and that separation from his wife and children will be onerous for him. This is particularly so in the light of the present COVID-19 pandemic restrictions in gaol. I take these matters, including the COVID-19 pandemic restrictions, into account in fixing an appropriate sentence in the same way I explained in McKinnon v R [2020] NSWCCA 106.

Comparable cases

143. In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 the High Court reiterated that consistency in federal sentencing is achieved with regard to what has been done in other cases through the work of the intermediate courts of appeal. The cases suggested by the Crown to provide real assistance in fixing an appropriate sentence were limited:

1. in Dickson v R [2016] NSWCCA 105, the offender was found guilty following a trial of two serious offences. Count 1 related to a complex tax fraud with net losses to the Commonwealth in excess of $100 million. The other count related to money laundering of over $63 million. The offender’s personal gain was found to be $19,616,996.37. The offending occurred over a period of about 6 years. Mr Dickson was originally sentenced by Beech-Jones J to 11 years imprisonment with a non-parole period of 7 years (see R v Anthony James Dickson (No 18) [2015] NSWSC 268) but was later re-sentenced following a successful Crown sentence appeal by the Court of Criminal Appeal to a total effective term of 14 years imprisonment with a non-parole period of 9 years and 3 months (see Dickson v R [2016] NSWCCA 105); and

2. R v Issakidis [2018] NSWSC 378. This case involved Mr Dickson’s co-conspirator. Mr Issakidis’ personal gain was approximately $15,738,020. Like Mr Dickson he faced two serious charges. A single non-parole period of 7 years and 6 months was imposed. Unlike the present case, there was no [redacted] early plea of guilty. Mr Issakidis’ conviction only appeal was dismissed by the Court of Criminal Appeal: Issakidis v The Queen [2019] NSWCCA 302.

144. I have considered all of the other cases referred to by the parties but have concluded that they do not provide any particular assistance. It is clear that those cases involve a wide range of conduct. I take into account what the High Court made clear in Hili v The Queen at [18] that consistency in federal sentencing is not demonstrated by, and does not require, numerical equivalence.

145. The principal case referred to by both parties as providing guidance for the conspiracy to defraud count was R v Kitson [2019] NSWSC 1109. In that case the offender was a principal in the tax fraud conspiracy here engaged who pleaded guilty to one contravention of s 135.4(3) of the Criminal Code. The loss to the Commonwealth was at least $105,625,304.36. Mr Kitson’s personal gain was approximately $1.3 million. [redacted]. Like Mr Anquetil, Mr Kitson had a strong subjective case. Mr Kitson was sentenced to imprisonment for a period of 4 years and 6 months and a non-parole period of 3 years.

146. Mr Kitson was near the top of the hierarchy in the tax fraud conspiracy. The starting point in Mr Kitson’s case, 9 years, is near the top of the range for offending of this kind. I have decided that taking everything I have already said properly into account, the starting point for Mr Anquetil should be slightly higher than for Mr Kitson to reflect his role at the very top of the hierarchy. The offender came to the conspiracy at the beginning and was instrumental in its front office operations. Prior to affording any discount to Mr Anquetil’s sentence, I would apply a slightly higher starting point namely 9 years and 4 months imprisonment.

147. Mr Anquetil, unlike Mr Kitson, also faces a very serious money laundering charge where the legislative guidepost is imprisonment for 25 years. The seriousness of money laundering has been emphasised in many authorities: see for example R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192 and Dickson v R to which I have already referred.

148. I accept the Crown submission that it would be an error to fail to consider the separate criminality the subject of Mr Anquetil’s money laundering when identifying an appropriate sentence for that offence.

149. The Crown pointed to head sentences for money laundering of 12 years in the case of Mr Dickson and 8 years and 3 months in the case of Mr Issakidis as providing some guidance in fixing a sentence, prior to discounts, for the present money laundering offence. The Crown emphasised that the available sentence was not limited by the sentence imposed on Mr Dickson.

150. Mr Anquetil’s conduct in count 2, considered in isolation, is less serious than Mr Dickson’s money laundering conduct because of the smaller amounts involved and the smaller personal gain, $19.6 million compared to $12.2 million. On the other hand, Mr Anquetil has asked that a serious money laundering charge be taken into account on a schedule thereby increasing the seriousness of his money laundering offence.

151. Having regard to all of the matters I have set out above, the appropriate starting figure in identifying a sentence, before applying any discount to Mr Anquetil’s sentence, is 12 years imprisonment for the money laundering offence. After the application of discounts and the application of rounding the appropriate head sentences are 4 years and 8 months imprisonment for the tax fraud conspiracy and 6 years imprisonment for the money laundering offence.

152. In considering the appropriate degree of accumulation as between the two offences to which the offender has pleaded guilty, I have had particular regard to the principles of totality explained by the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40], [42] per McHugh, Hayne and Callinan JJ. I reject the offender’s submission that the sentence for the proceeds of crime offence can almost entirely encompass the criminality in respect of the conspiracy to defraud offence. Each involves separate serious criminality. It is correct, however, that the facts in relation to the conspiracy to defraud and the offender’s money laundering overlap. I proceed on the basis that the totality principle serves to ensure that an offender is not subjected to a “crushing sentence”: Dickson v R [2016] NSWCCA 105 at [198] per Schmidt and Wilson JJ (with whom Macfarlan JA agreed). I have determined that there should be a degree of accumulation between the sentences for the two counts sufficient to reflect the separate serious criminality involved. I have decided that one year and six months is the appropriate amount of accumulation.

153. I impose a single non-parole period for both offences of 5 years. This sentence is of a severity appropriate for the offences and provides a minimum period that Mr Anquetil must spend in custody appropriate to all the relevant elements of punishment, including rehabilitation, the objective seriousness of his offences and his subjective circumstances.

Conclusion and sentence

154. Having regard to all of the matters identified in these reasons, and in particular the matters arising under s 16A(2)(h) of the Crimes Act, the offender is sentenced as follows:

1. For count 1, being an offence contrary to s 135.4(3) of the Criminal Code, the offender is sentenced to a term of imprisonment of 4 years and 8 months commencing on 31 July 2020 and expiring on 30 March 2025.

2. For count 2, being an offence contrary to s 400.3(1) of the Criminal Code, the offender is sentenced to a term of imprisonment of 6 years to date from 31 January 2022 and expiring on 30 January 2028.

3. Pursuant to s 19AB(1) of the Crimes Act 1914 the Court fixes a single non-parole period of 5 years, expiring on 30 July 2025.

155. I take into account the s 16BA schedule matter in relation to count 2 which I have signed and placed with the court file.

156. [redacted]

157. [redacted]

158. I am required by s 16F of the Crimes Act to explain the sentences I have imposed. I have imposed an effective term of term of imprisonment of 7 years and six months imprisonment to commence on 31 July 2020 and a single non parole period of 5 years. The offender is first eligible for parole on 30 July 2025. That means that Mr Anquetil will be imprisoned for not less than 5 years. If he is granted parole at the end of that time, or before the expiration of the head sentence, he will serve the balance of the sentence in the community. If he is granted parole, the order will be subject to conditions determined by the relevant parole authority, and may be amended or revoked. If he fails, without reasonable excuse, to comply with the conditions of his parole, his parole may be revoked and he may be taken back into custody to serve the remainder of his head sentence.

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Amendments

27 March 2023 - Partially redacted to comply with publication restrictions.

04 April 2023 - Redacted to comply with publication restriction.

Decision last updated: 04 April 2023