R v Dev Menon

[2023] NSWSC 768

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Dev Menon [2023] NSWSC 768

Hearing dates:

29 June 2023, 4 July 2023

Date of orders:

4 July 2023

Decision date:

04 July 2023

Jurisdiction:

Common Law - Criminal

Before:

Payne JA

Decision:

(1)   Mr Menon is sentenced to a term of imprisonment of 8 years and 6 months to commence on 2 May 2023 and expire on 1 November 2031 for the tax fraud conspiracy;

(2)    Mr Menon is sentenced to a term of imprisonment of 12 years to commence on 2 May 2025 and expire on 1 May 2037 for the money laundering conspiracy;

(3) Under s 19AB of the Crimes Act 1914 (Cth) a single non-parole period of 9 years commencing on 2 May 2023 is fixed;

(4)    The offender is first eligible for parole on 1 May 2032.

Catchwords:

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth – money laundering conspiracy – significant loss to the Commonwealth – persistent course of conduct

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth) sch 1, Criminal Code

Cases Cited:

AE v R [2023] NSWCCA 74

Alpha v The Queen [2013] NSWCCA 292

Arenilla-Cepeda v The Queen [2012] NSWCCA 267

Cheung v R (2001) 209 CLR 1; [2001] HCA 67

Croke v The Queen [2021] NSWCCA 249

Dickson (No 18) [2015] NSWSC 286

Dickson v R [2016] NSWCCA 105

Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42

DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22

DPP (Cth) v Goldberg [2001] VSCA 107 (2001) 184 ALR 387

Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 303

Elshani v R [2015] NSWCCA 254; (2015) 255 A Crim R 488

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Giang v R [2017] NSWCCA 25

Giourtalis v R [2013] NSWCCA 216

Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45

Issakidis v The Queen [2019] NSWCCA 302

Kao v R [2020] NSWCCA 38

Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3

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

Pearce v R (1988) 194 CLR 610

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

R v Anquetil [2020] NSWSC 995

R v Brown (1986) 43 SASR 33

R v Chalabian (No 14) [2022] NSWSC 829

R v Cranston (No 9) [2021] NSWSC 1413

R v Cranston (No 28) [2023] NSWSC 199

R v Doff [2005] NSWCCA 119

R v El Rashid (NSWCCA, unreported, 7 April 1995)

R v Gregory (2011) 34 VR 1; [2011] VSCA 145

R v Hammond [2020] NSWSC 888

R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24

R v Hawkins (1989) 45 A Crim R 430

R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370

R v Huston; R v Fox; R v Henke; ex parteCth DPP [2011] QCA 350; (2011) 219 A Crim R 209

R v Isaacs (1997) 41 NSWLR 374

R v Issakidis [2018] NSWSC 378

R v Jiao [2015] NSWCCA 95; (2015) 251 A Crim R 236

R v Kitson [2019] NSWSC 1109

R v Lauren Cranston [2023] NSWSC 454

R v Lin [2014] NSWCCA 254

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

R v Nguyen [2010] NSWCCA 331

R v Patrick Willmott [2023] NSWSC 474

R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524

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

R v Roach [2005] VSCA 162

R v Todd [1982] 2 NSWLR 517

Sabra v R [2015] NSWCCA 38

Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29

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

Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10

Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Texts Cited:

NSW Corrective Services Custodial Operations Policy and Procedures s 10.1, “Visits to inmates by family and friends”

Category:

Sentence

Parties:

Rex (Crown)
Dev Menon (Offender)

Representation:

Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
P Bruckner (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Hardinlaw (Offender)

File Number(s):

2017/148776

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) applies throughout the Commonwealth of Australia.

Judgment – EX TEMPORE

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

1. PAYNE JA: On 26 April 2022, Mr Dev Menon, together with Messrs Adam Cranston, Jason Onley, Patrick Wilmott and Ms Lauren Cranston, was arraigned before a jury on the following counts:

Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe, 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).

Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.

Contrary to sections 11.5(1) and 400.3(1) of the Criminal Code (Cth).

2. On 7 March 2023, the jury returned verdicts of guilty on both counts in relation to Mr Menon. For reasons explained in R v Cranston (No 28) [2023] NSWSC 199, Mr Menon was granted bail post-conviction for a limited period. On 4 May 2023, Mr Menon’s bail was revoked and he was remanded in custody.

3. In what follows I make findings of fact for the purposes of sentence. The principles I have applied in making those findings of fact are as follows:

1. A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;

2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70];

3. If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: Olbrich at [25]. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: Olbrich at [25];

4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32];

5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving R v Isaacs (1997) 41 NSWLR 374 at 376-377;

6. A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way: Cheung at [17];

7. Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown’s case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D.

4. The following evidence was led in the sentence proceedings.

5. The Crown relied on:

1. an affidavit affirmed on 14 April 2023 by Edward Brendan McGinness, the Acting Principal Federal Prosecutor at the Commonwealth Director of Public Prosecutions. This affidavit addressed the procedural history of the prosecution and the trial;

2. all of the evidence given in the trial; and

3. s 10.1 of the NSW Corrective Services Custodial Operations Policy and Procedures, titled “Visits to inmates by family and friends”.

6. Mr Menon relied on:

1. A report on the offender by forensic psychologist Dr Mamta Sidhu, dated 2 May 2023;

2. A report about the offender’s daughter by psychologist Holly Suen dated 24 May 2023;

3. An undated report about the offender’s daughter by occupational therapists Ms Madison Cochrane and Ms Marissa West;

4. A report about the offender’s wife by psychologist Dr Thomas Dornan, dated 26 June 2023;

5. Correspondence and documents from officers of Corrective Services New South Wales, dated 13 and 26 June 2023;

6. An undated Lexis Nexis report of media coverage mentioning the offender;

7. Character references in the form of:

1. A letter dated 2 June 2023 from a friend of the offender, Mr Edward Hock;

2. A letter dated 20 June 2023 from the offender’s parents, Mr Jeevan Menon and Mrs Gita Menon;

3. A letter dated 28 May 2023 from a friend of the offender, Mr Richard Hipsley.

Relevant facts

7. The facts found in this judgment are not drawn from sentences imposed upon Mr Menon’s co-conspirators and relate only to Mr Menon. One matter bears particular emphasis in making these findings. The Crown case against Mr Menon was almost entirely a circumstantial case. Given the content of the recordings, in particular, the Crown had a compelling circumstantial case. A good deal of the detailed written submissions made on sentence on Mr Menon’s behalf repeated submissions made to the jury, which were plainly rejected by them, which sought to cast doubt on particular pieces of circumstantial evidence in isolation. I do not propose to examine all of the pieces of circumstantial evidence in minute detail but, rather, will focus on the important submissions made by the parties having an effect on my ultimate conclusions.

8. In September 2016, the Australian Federal Police (AFP) commenced an investigation into an alleged conspiracy between several persons to dishonestly cause a loss to the Commonwealth (the tax fraud conspiracy). The tax fraud conspiracy involved the establishment and operation of a payroll services company, named Plutus Payroll Australia Pty Ltd (Plutus) and a number of apparently unrelated subcontracting companies, which were in truth controlled by a number of the conspirators. The purpose of establishing this structure was to deprive the Commissioner of Taxation of Pay As You Go Withholding (PAYGW) amounts and Goods and Services Tax (GST).

9. Between 2014 and 2017, Plutus collected from its legitimate clients $141,291,923.08 in PAYGW and GST that it was obliged to remit to the Australian Taxation Office (ATO). At least $105,625,304.36 was misappropriated as a result of the conspiracies (74.7% of all PAYGW and GST amounts collected by Plutus). Only $30,883,342.47 was ever remitted to the ATO and a further $4,783,276.25 was later garnisheed by the ATO.

10. The conspirators agreed to launder the money which should have been paid to the ATO (the money laundering conspiracy). In furthering the money laundering conspiracy, in ways I will explain in greater detail, various entities were used to receive, conceal and divert the misappropriated taxes derived from the tax fraud conspiracy, essentially for the benefit of a number of the conspirators.

11. Mr Menon was not involved in the initial planning and set up of Plutus, the second tier companies or the conspiracies. The architects of the scheme were Jason Onley, Adam Cranston, Peter Larcombe and Simon Anquetil. Joshua Kitson was involved from the beginning of the tax fraud conspiracy and was a significant participant in that conspiracy. Mr Menon become over time a pivotal participant in both conspiracies.

12. By March 2015, the offender was involved in the affairs of the second tier companies. As I will explain, whilst there is a significant chance Mr Menon was a knowing participant in both conspiracies from that date, I am not able to reach that conclusion beyond reasonable doubt. I am satisfied, however, based on the legal principles I have identified, that Mr Menon was a knowing participant in both conspiracies from June 2015.

The tax fraud conspiracy

13. Between February and March 2014, at least five of the conspirators, Messrs Onley, Adam Cranston, Anquetil, Kitson and Larcombe (now deceased) had meetings at so called “gentlemen’s clubs” in the Sydney CBD during which they discussed a scheme which involved operating a payroll business as a means to misappropriate PAYGW amounts and GST that was payable to the ATO. Mr Menon did not participate in these meetings and there is no evidence that he knew of these meetings.

14. A payroll company, Plutus, was incorporated on 23 April 2014 with Mr Anquetil as the sole director. Legitimate clients of Plutus included initially, contractors, and later, larger companies and even government agencies. The principal incentive for contractors and companies to sign as clients of Plutus was the fact that Plutus did not charge any fee for its services.

15. The tax fraud conspiracy operated and was implemented as follows:

1. Legitimate clients made regular transfers of gross payroll amounts to Plutus pursuant to contractual arrangements. Gross payroll comprised wages and salaries, PAYGW amounts and superannuation. GST was paid by the legitimate clients on the total gross payroll amounts. Plutus was obliged under contracts with legitimate clients to pay the wages and salaries of the relevant employees and contractors, withhold and remit to the ATO the required PAYGW and GST amounts, as well as remit the employees’ superannuation contributions to their superannuation funds.

2. Between July 2014 and March 2016, Plutus transferred the gross payroll monies, in full, to companies incorporated and controlled by the conspirators and referred to by the conspirators as the “bots” or “bottom companies” or subcontracting companies (the second tier companies). The conspirators then processed the relevant payments through these companies. The conspirators arranged for vulnerable and unsophisticated people who did not understand the operations of the second tier companies to be appointed as sole shareholders and directors of the second tier companies. The conspirators then arranged for apparently unrelated third parties to "manage" the second tier directors. In the period from mid-2015 to mid-2016, that role was filled by Mr Simon McIntyre.

3. In the period from mid-2016 to February 2017, Mr Daniel Rostankovski, under the direction of Mr Adam Cranston, Mr Onley and Mr Menon became responsible for recruiting and managing the directors of the second tier companies and ensuring they had no unsupervised involvement in the operations of those companies. In their liaison with Plutus staff, accountants and other third parties, Ms Cranston and Ms Hammond signed off as the named directors of the second tier companies or as “bookkeepers” assisting the directors in email communications. Mr Menon was a principal point of contact for Ms Cranston and Ms Hammond in advising them how to manage the second tier companies and avoid the interest of taxation and other authorities. In this regard Mr Menon suggested and then supervised the appointment of accountants to the second tier companies and coached Ms Hammond about how to deal with those accountants to avoid scrutiny by taxation and other authorities of the second tier companies.

4. In the period from April 2014 to February 2015, Ms Cranston and Mr Willmott were principally involved in the operation of the second tier companies’ accounts from a “back office”, at the instruction of Mr Onley, Mr Larcombe and Mr Adam Cranston.

5. In the period from February 2015 to May 2016, Ms Hammond and Mr Willmott were principally involved in the operation of the second tier companies’ accounts from this “back office”, at the instruction of Mr Onley, Mr Larcombe and Mr Adam Cranston. From March 2015, Mr Menon was involved in the “back office” operation of the conspiracies as an accountant and lawyer and, at least from June 2015, Mr Menon was a knowing participant in the conspiracies.

6. On 26 August 2015, Mr Larcombe left Australia, never to return. Mr Larcombe had little involvement in the conspiracies after August 2015. Mr Larcombe died in Los Angeles on 19 August 2016.

7. From May 2016 to May 2017 Ms Cranston and Ms Hammond were engaged in conducting the day-to-day management and operation of the second tier companies. Throughout this period, they acted on the instructions of Mr Onley, Mr Adam Cranston and Mr Menon.

16. Although the legitimate client companies’ agreements with Plutus contained a clause enabling Plutus to assign or subcontract its obligations, Plutus did not inform its legitimate clients about the subcontracting arrangement it had put in place with the second tier companies. This is because the subcontracting arrangement was a mechanism designed by the conspirators to misappropriate amounts Plutus was obliged to pay the ATO. While the second tier companies would pay the contractors and employees of the legitimate companies amounts representing their net wages and superannuation, the second tier companies would, from the very beginning, remit only part of the taxes required to be paid to the ATO. Instead, for the entire period of the conspiracies a large proportion of these taxes would be retained by the second tier companies and not paid to the ATO but distributed according to the instructions of the conspirators.

17. The second tier companies paid the amounts which should have been paid to the ATO principally to other entities controlled by Mr Onley, Mr Larcombe, Mr Adam Cranston and Mr Anquetil, often as payments of fabricated “invoices”, as well as to individuals including the conspirators. The second tier companies in some cases made payments back to Plutus. Over time the liabilities of the second tier companies to the ATO grew at an alarming rate. Annexed to these reasons and marked Annexure 1 is Exhibit II from the trial which shows the dramatically increasing obligations of the second tier companies to the ATO and the extent to which the second tier companies fell further and further behind in their tax payment obligations.

18. In March 2016, Plutus began to retain a portion of the funds it received from legitimate clients before the gross payroll amount plus GST was remitted to the second tier companies (the Plutus cut). I accept [redacted] evidence that the manual process implementing the Plutus cut commenced in March 2016. The Plutus cut was also used to make payments of PAYGW and GST, not to the ATO, but for lavish personal items at the direction of the conspirators.

19. After 1 July 2016, regular payments by Plutus of amounts which should have been paid to the ATO were made to a newly incorporated company in which Mr Menon was closely involved, controlled by Messrs Cranston and Onley, Synep Ltd (Synep). Payments were made from Synep for lavish personal expenditure on behalf of the principal conspirators.

20. Mr Menon was an accountant and a lawyer. He was a partner at Clamenz Lawyers (Clamenz) which was initially located in the same building as Plutus. From June 2015, Mr Menon was knowingly involved in ensuring that the subcontracting arrangement and front office facade was maintained and the back office dealings of the second tier companies were not exposed.

21. While Plutus lodged Business Activity Statements (BASs), throughout the period of the tax fraud conspiracy, the second tier companies either lodged their BASs late (up to 13 months late) or did not lodge a BAS at all.

16. There were eight second tier companies involved in these conspiracies:

1. ACN 169 184 909 Pty Ltd (t/as Keystone Pay) (Keystone)

2. Uneek Consulting Services Pty Ltd (later renamed Keystone Payroll Australia Pty Ltd, then later PPA Contractors Australia Pty Ltd) (Uneek)

3. Sonar Consultants Pty Ltd (later renamed PPA Services Australia Pty Ltd) (Sonar)

4. PP Aus Holdings Pty Ltd

5. PP Australia NSW Pty Ltd

6. PP Services (WA) Pty Ltd

7. PPA (SA) Pty Ltd

8. PPA NT Pty Ltd

23. Companies (4) to (8) are referred to as the “PP Companies”. Annexed to these reasons as Annexure 2 are exhibits PP, QQ and RR from the trial which illustrate diagrammatically how money was moved as part of the conspiracies in the three taxation years during which the conspiracies operated.

24. On 8 June 2016, Keystone was placed into liquidation. The ATO investigation into the conspiracies only commenced in earnest in the second half of 2016. On 8 and 22 December 2016, two bank accounts held in the name of Uneek were garnisheed by the ATO. Sonar never had a separate bank account and used Uneek’s accounts. On 24 January 2017, the ATO garnisheed the five PP second tier companies’ accounts. After 24 January 2017, Plutus managed its obligations to its legitimate clients by paying salary, wages and superannuation directly from Plutus.

25. Between January and May 2017, a number of discussions between the conspirators were recorded by surveillance devices installed at Mr Menon’s firm, Clamenz, at the MLC Centre in Martin Place, Sydney. During these discussions, the conspirators, including Mr Menon, spoke in explicit terms about the fraud, including its history, key features, how it was implemented and the conspirators’ respective involvement and financial gains.

26. On 1 February 2017, at Clamenz, Mr Rostankovski issued the principal conspirators, including Mr Menon, with a blackmail demand for $5 million. Mr Rostankovski threatened media exposure of the conspiracies and violence if the blackmail sum was not paid. After the blackmail demand of $5 million had been almost completely paid via instalments, a further blackmail demand was made for an additional $20 million. Over 12 weeks, a total of $24.24 million in PAYGW and GST which should have been paid to the ATO was retained by the conspirators and was transferred from Plutus to the trust account of a law firm, Lands Legal, to satisfy the blackmail demands. Mr Rostankovski and a Mr Daniel Hausman pleaded guilty and have been imprisoned for conduct arising from these events. Mr Sevag Chalabian, a solicitor at Lands Legal, was found guilty by a jury of money laundering in relation to these events. I will return to Mr Chalabian’s sentence of imprisonment later in these reasons.

27. On 26 April 2017, the ATO served a garnishee order on bank accounts operated by Plutus. The conspiracies concluded after the AFP arrested a number of people, including Mr Menon, on 17 and 18 May 2017.

The money laundering conspiracy

28. The conspirators agreed that taxes dishonestly withheld from the Commonwealth would not be paid to the ATO but would instead be dealt with for the ultimate benefit of the conspirators. The quantum of misappropriated taxes increased each financial year. The means by which monies were misappropriated adapted and evolved. In furtherance of the money laundering conspiracy, monies were received, concealed and disposed of through bank accounts owned by companies associated with the conspirators.

29. Acts in furtherance of the money laundering conspiracy included:

1. The PAYGW and GST amounts withheld by the second tier companies by the “back office” were transferred to a number of entities’ accounts, controlled by and associated with, in particular, Mr Adam Cranston, Mr Onley and Mr Anquetil and used to purchase real property, luxury cars, a boat, an aeroplane and other luxury items in which conspirators were joint or principal beneficiaries. At times, funds transfers were also accompanied by false invoices and false descriptions such as loans. Ms Cranston, Ms Hammond and Mr Wilmott made these transfers at the instruction of others, in particular Mr Adam Cranston, Mr Onley, Mr Larcombe and Mr Menon.

2. Some of the PAYGW and GST which should have been paid to the ATO was also transferred by the second tier companies to other entities owned by Mr Anquetil, and some of those amounts were transferred back to Plutus to make Plutus appear to be a legitimate and profitable company. To the extent that Mr Bruckner submits that Mr Menon genuinely believed, before February 2017, that Plutus or Synep were profitable companies, I reject that submission. The accounts of Plutus referred to by Mr Bruckner allegedly showing a profit that Mr Menon relied upon contained material entries that Mr Menon knew to be incorrect. Mr Menon was involved with the inner workings of the conspiracies and knew at all times after June 2015 that Plutus was not legitimate or profitable, if account was taken of the millions of dollars in PAYGW and GST which should have been paid to the ATO which was not.

3. From at least October to December 2014 large sums of PAYG and GST amounts which should have been paid to the ATO were transferred by the second tier companies to a company controlled by Mr Anquetil named Media and Marketing Group (MMG) and transferred by MMG back to Plutus to make Plutus appear to be legitimate and profitable.

4. From 1 July 2016, the Plutus cut was transferred through Synep which became the parent company of Plutus, and other entities, for the benefit of Mr Onley, Mr Adam Cranston and Mr Anquetil. This was a way in which to make Plutus, and thus Synep, appear to be legitimate and profitable.

30. The main financial beneficiaries of the money laundering conspiracy were Messrs Adam Cranston, Onley and Anquetil.

31. Mr Menon received $248,114.19 in payment for shares in Clamenz from Synep. He also received fees paid to his firm Clamenz by companies involved in the conspiracy. Mr Menon knew the amounts he received for the shares and the fees paid were sourced from PAYG and GST which should have been paid to the ATO. It may be accepted, as Mr Bruckner submitted, that in respect of fees charged by Mr Menon he was working hard and that the Crown did not set out to prove that Mr Menon’s work was not valuable legal work. This rather misses the point. Mr Menon was involved, no doubt for long hours and exercising his legal skills, in giving effect to the conspiracies and in trying to assist his co-conspirators to avoid the scrutiny by the ATO and other regulators. It may equally be accepted that the Crown did not set out to prove that Clamenz shares were not worth the amount Synep agreed to pay for them. Such a claim would have been, in any event, an arid exercise in circumstances where, as the Crown correctly submits, Mr Menon received $248,114.19 in payment for shares in Clamenz but the shares were never transferred to Synep as his arrest for these conspiracies intervened. Whilst I do not find that Mr Menon was principally motivated by greed, his behaviour in accepting funds he knew were sourced from PAYG and GST which should have been paid to the ATO is thoroughly discreditable conduct for a solicitor to engage in.

32. Exhibit LL Diagram 32, which is annexed to these reasons as Annexure 3, shows the flow of funds to Mr Menon’s personal account, including the $248,114.19 payment from Plutus for his share of Clamenz. Exhibit LL Diagram 33 and 34, annexed to these reasons as Annexure 4, show the flow of funds from Plutus to Clamenz’s trust account.

Commencement of Mr Menon’s knowing involvement in the conspiracies

33. As I have said, Mr Menon was not involved in the initial planning and set up of Plutus or the second tier companies. Having regard to all of the evidence, I find that Mr Menon became knowingly involved in the conspiracies from June 2015. [redacted] evidence about a conversation he had in June 2015 with Mr Menon and Mr Onley was compelling, consistent with the verdict of the jury and I accept that evidence beyond reasonable doubt. No doubt arises by reason of the fact that in April 2015 [redacted] sent a cousin to do practical legal training at Clamenz. If anything, the closeness of the relationship between [redacted] and Mr Menon at that time lends support to my acceptance of [redacted] evidence. To the extent that Mr Menon denied this conversation, I reject his evidence. Mr Menon was a witness who, in his own words, “did lie in those recordings … lied to the [Office of State Revenue] … [and] did tell other lies at various times” in the course of these conspiracies. I would not accept Mr Menon’s evidence unless satisfied that it was corroborated by independent evidence or was contrary to Mr Menon’s interests. Mr Bruckner, who appeared for Mr Menon, did not challenge the making of that credit finding about his client’s evidence at the trial.

34. [redacted] evidence is also consistent with other evidence which establishes that Mr Menon was involved in the detailed planning and execution of the incorporation of new second tier companies to replace Keystone, which was to be liquidated by Mr Cranston and Mr Onley with millions of dollars in tax debts. I find that in this conversation, Mr Onley told Mr Menon about the new companies being set up and Mr Menon asked Mr Onley whether those companies were ready to go. [redacted] said that he would need the details of these companies (such as their names, bank account details, and ABNs) in order to set them up in the Plutus payroll system so that Plutus could have staff paid through them. Mr Menon was then asked whether it was advisable to notify clients beforehand that the name on their payslip was going to change from Keystone to the name of the new second tier companies. [redacted] was asked the following:

Q. What did Mr Menon say?

A. Something along the lines of, "It's probably best not to tell them, or they'll see the name on the pay slip anyway so why draw attention to it".

35. I find that Mr Menon knew in June 2015 that the original second tier company, Keystone (a company with no apparent connection to its true controllers Adam Cranston, Jay Onley or Peter Larcombe), was to be placed into liquidation owing many millions of dollars to the tax office and replaced by two new companies, Uneek and Sonar, which would operate in essentially the same way as Keystone had and, contrary to the fact, would also appear to have no apparent connection to their real controllers Adam Cranston, Jay Onley or Peter Larcombe. I find that in June 2015 Mr Menon knew that the second tier companies had straw directors appointed by Adam Cranston, Jay Onley or Peter Larcombe. I reject Mr Menon’s evidence at the trial that he believed the straw directors were appointed to avoid blackmail demands from outlaw motorcycle gangs and their associates. I find that Mr Menon knew what was in any event blindingly obvious: straw directors were being appointed to Uneek and Sonar (as had been the case with Keystone) to insulate the real controllers of those companies, Adam Cranston, Jay Onley and Peter Larcombe from liability for unpaid PAYG and GST which (in the case of Keystone) had already reached the millions of dollars. Mr Menon had participated from March 2015 in meetings about lodgements for second tier companies which made him aware of their tax position. Knowing all of those matters, I find that Mr Menon agreed to participate in the conspiracies from June 2015.

36. The conspirators then discussed the contingency, as came to pass, that only one of the new companies was ready. [redacted] said (and I accept) that:

A. … Mr Menon said, "Well, that's not ideal but we can sort something out, as long as you can pay the money to one of the company's bank accounts, we can create a commercial arrangement between the two companies and figure that out later".

37. Pausing these, that was what occurred between Sonar (which never had a bank account) and Uneek.

38. The conspirators then discussed raising the 0.25% “fee” charged by the second tier companies to Plutus to 1% to make the arrangement appear more commercial. I find that Mr Menon explained that in this new phase of the scheme, “introducer fees” (which had been paid from the second tier companies back to Plutus) should no longer be paid and new methods introduced to siphon PAYG and GST from the second tier companies to Plutus and the conspirators.

39. I also accept the evidence of Ms Hammond about what she described as ”phase two” of the conspiracy, commencing in about July 2015. Exhibit D55 at the trial was Ms Hammond’s diagram of the “Decision Makers” in the conspiracy during this period. “Dev Menon Lawyer/Accountant” is listed as one of the decision makers, connected directly with the top three conspirators at this stage of the scheme, “Adam [Cranston]”, “Jay [Onley]” and “Peter [Larcombe]”.

Mr Menon’s asserted “advice” that the conspirators should pay more tax

40. As I have explained, the conspirators set out from the beginning to pay at least a percentage of the PAYG and GST which should have been paid. During the Keystone period that percentage was very low. In the second (Uneek and Sonar) period it was only slightly higher. In the third (PP companies) period, at various points the conspirators discussed the desirability of paying 60% of the tax owing. I find that this plan to pay 60% of the tax which should have been paid was understood by the conspirators, including Mr Menon, not as compliance with the law but as providing a potential “safe harbour” making it less likely that the ATO would cause criminal investigations or proceedings to be commenced. The conspirators, however, never paid anything like 60% of the PAYG and GST which should have been paid. As Annexure 1 shows, the conspirators fell further and further behind their tax obligations as time went on.

41. A theme of Mr Menon’s closing argument to the jury, repeated before me on sentence, was that Mr Menon was focused on having his fellow conspirators pay more tax, for example Mr Menon saying “I don't give a fuck as long as the taxes are paid" (Trial Exhibit R, R0004), and later in November 2016 saying to Adam Cranston (Trial Exhibit R, R0225) “finally we're startin' to get ahead on the taxes, like, that was a great meeting we had with you, just to run through those numbers. Mate, I was feelin' better, you know, after that”.

42. I find that these selective references to a small portion of the evidence establish no more than that Mr Menon, from time to time, reminded the co-conspirators of the “safe harbour” target they had agreed of 60% of the amount of tax which should have been paid. This “safe harbour” was not understood as being compliance with the conspirators’ tax obligations but was a target set for the purposes of avoiding detection, and ultimately prosecution. Mr Menon never said, to anyone, that the conspirators should pay 100% of current tax which should have been paid, let alone that the conspirators should pay all the tax which should have been paid over the life of the conspiracies.

43. I reject Mr Bruckner’s submission that the evidence supports a suggestion that the conspirators were only 8 weeks behind on PP company PAYG and GST obligations because some Uneek or Sonar tax debt was being paid. That conclusion is inconsistent with all of the evidence. Annexure 1 shows a devasting and increasing gap between PAYG and GST obligations and the much smaller payments being made.

Non-exculpatory duress

44. Mr Menon relied upon what was submitted to be non-exculpatory duress. As I will explain, I take that into account in a limited way. The following principles, relied upon by the Crown, were not disputed by Mr Bruckner. Drawing upon Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365 at [45]-[46], [49]-[54]; Kao v R [2020] NSWCCA 38 at [39], [45]; and Giang v R [2017] NSWCCA 25 at [33] it was submitted that I should proceed on the basis that:

1. The Court is entitled to approach non-exculpatory duress claims with a significant degree of circumspection. It is easy to make claims as to the conduct of persons applying pressure on an offender.

2. The Court is required to make careful assessment of evidence in support of asserted non-exculpatory duress. The onus of proof is on the offender. Even where that onus is discharged, the Court still has to decide what weight non-exculpatory duress has on sentence.

3. The Court is also required to consider the form and duration of the offender’s conduct, the nature of threats made and the opportunity to report this to the authorities.

4. The Court is required to articulate the objective gravity and moral culpability of the offending in light of the duress.

45. I am bound by, and in any event respectfully agree with Johnson J in Tiknius that it is necessary to keep in mind, even at the sentencing stage, some of the policy considerations underlying the law of duress. In Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 at 106 [31], French CJ, Heydon, Crennan, Kiefel and Bell JJ accepted as a starting point when considering the reasonableness of a person's actions (concerning the defence of duress), the proposition stated by King CJ in R v Brown (1986) 43 SASR 33 at 40:

"The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation."

46. General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at 536-539 [54]-[63]; R v Roach [2005] VSCA 162 at [15].

47. Whilst no doubt the threats of violence made by Mr Rostankovski were frightening to Mr Menon, as I explained in R v Cranston (No 9) [2021] NSWSC 1413, he and the other conspirators quickly turned the blackmail demand to their own perceived advantage. Mr Menon drafted a deed in which he intended would pass the liability for the unpaid tax to the straw directors. Mr Menon’s contemporaneous assessment of the outcome of the blackmail negotiations was that:

1. “it’s more than sorted. I’m feeling super-pumped”;

2. “we couldn’t have got a better outcome”

3. “I could not be happier”; and

4. “What’s going to save us is the deed … And that’s why that was the key to the whole thing”.

48. The resolution of the blackmail demand also involved affidavits being sworn by the straw directors which Mr Menon and the co-conspirators knew to be false. Mr Menon was closely involved in this part of the scheme. He said at the time:

1. “Once I have those affidavits … they’re checkmated”;

2. “Once we got the affidavits I’ll feel comfortable that they’re stitched up to the max, right. Any criminal … case or anything, it’s like these are the affidavits signed by their lawyer”;

3. “Once we’ve had the last ….(indistinct)….and from there its going to be almost impossible for them to weasel out of this…”;

4. “Oh, its already done. He sent me them. Like he’s – sorry, he sent me photos of the affidavits signed and he’s confirmed in writing with me saying ‘I am in possession of all things, I make an undertaking that I will hand up’ – We’re gonna get it mate.”

49. Once the deed and the affidavits were in place Mr Menon and his co-conspirators believed that they had passed the tax debts onto the straw directors. From that point, Mr Menon states on the recordings that he would go straight to the police if he was again threatened. I find that it was only the need to prevent his criminal conduct from being exposed which prevented Mr Menon from approaching the authorities about the blackmail. As Mr Menon explained on 7 February 2017, to Mr Anquetil and Adam Cranston:

But that’s only if he’s got the deeds and the affidavit, and if we wind up everything they’ll have nothing to blackmail us with. Like there won’t be anything to blackmail us with. It’ll be like you can’t blackmail us, we’ll just go to the cops.

50. In relation to non-exculpatory duress, detailed submissions about factual matters were advanced by Mr Bruckner. In oral address Mr Bruckner’s point boiled down to no more than this; I should make the same finding as I made in relation to Mr Anquetil about duress (see R v Anquetil [2020] NSWSC 995 at [100]). All of Mr Bruckner’s detailed submissions made were in aid of that finding. As I propose to make essentially the same finding about duress in relation to Mr Menon it was common ground that I was relieved from making the detailed findings about the minutiae of things said and done by Mr Menon in relation to the blackmail.

51. I find that the payment of $25 million to Mr Rostankovski and Mr Chalabian was not made under duress. I find that the payment was made principally to avoid detection of the crimes Mr Menon and his co-conspirators had committed. A part of Mr Menon’s motivation in participating in this blackmail payment, however, was fear of threats made to him by people he believed were linked to criminal organisations. This bears on Mr Menon’s moral culpability, in much the same limited way as it bore on Mr Anquetil’s.

Mr Menon’s role in the tax fraud conspiracy

52. Mr Menon’s role and participation in the tax fraud conspiracy varied and increased dramatically over time. Mr Menon:

1. Provided advice to the principal conspirators in relation to the operation of the tax fraud conspiracy;

2. Helped manage the vulnerable straw directors, including by liaising with Mr Rostankovski and having directors sign documentation knowing it exposed them to the risk of substantial personal tax liabilities;

3. Participated in meetings where the operation of the tax fraud conspiracy was discussed;

4. Gave instructions to Ms Hammond and Ms Cranston about payroll processing and the making of payments;

5. Used his expertise and standing as a solicitor in correspondence and in drafting legal documentation to facilitate key transactions and the incorporation of relevant entities.

53. Mr Menon played a prominent role in attempting to deal with interest from the ATO and other investigating authorities, including:

1. In discussions about evading detection, destroying evidence and reassuring co-conspirators;

2. overseeing the forgery of documents created to lend a false appearance of legitimacy to certain transactions involved in the scheme; and

3. lying in an interview with the NSW Office of State Revenue and submitting an objection to the ATO containing the blackmail deed and other deliberately false information about the entities and people involved in the conspiracies.

Meetings while McIntyre was managing straw directors (mid-2015 to mid-2016)

54. Mr Menon was present for various discussions between mid-2015 and mid-2016 at the Aventis office involving Mr Cranston, Mr Larcombe, Mr Onley, Mr Willmott and Mr McIntyre, who was then managing the second-tier directors. During these meetings, they discussed company names and structures, changing the directors of companies, creating new companies and ensuring that the straw directors did not talk to the ATO.

55. Lest there be any doubt, I accept Mr McIntyre’s evidence on this subject. Mr Menon was present for one meeting shortly before Mr McIntyre ceased managing the second tier directors, where participants discussed raising the amounts of money to be paid to the straw directors to increase their efficiency.

56. Mr Menon would occasionally attend the second tier company back office and talk with Mr Willmott, Mr Larcombe, Mr Onley or Mr Cranston about company structures, names and directors.

Dealing with straw directors

57. Mr Bruckner took issue with the precise details of Mr Menon’s interactions with the straw directors but I find that Mr Menon was closely involved with supervising them and attempting to ensure they provided a protective buffer between the tax authorities and the principal conspirators Adam Cranston and Jay Onley. I find that Mr Menon had direct interactions with some of the straw directors of the second tier companies as follows:

1. Mr Anthony Palumberi, the sole director, secretary and shareholder of Sonar, signed documents with Mr Rostankovski and Mr Menon. Mr Palumberi was not given any advice about what he was signing, did not read the documents first, and did not know what they were.

2. Mr Ben Alaban, the sole director, secretary and shareholder of Uneek, met Mr Menon with Mr Rostankovski (who Mr Alaban knew as “James”). Mr Menon told Mr Alaban to sign some documents to take over a company, which Mr Alaban did not read before signing. Mr Menon did not provide Mr Alaban with legal advice in relation to the documents, but assured Mr Alaban that it was all legitimate and above board. Mr Alaban attended Clamenz multiple times to sign paperwork. Mr Menon had Mr Alaban sign a verifying affidavit for a statement of claim in a proceeding by Uneek against another company, Hartford Investments Pty Ltd, despite Mr Alaban not knowing anything of the circumstances of the litigation and despite not knowing him for a year, as required of a witness.

3. Mr Alexander Nappa was the director of PP Aus Holdings Pty Ltd. He met Mr Menon, signed documents without reading them, and opened a bank account when instructed by Mr Menon and Mr Rostankovski. Mr Menon told him “What we are doing is legal. We have been doing it for years”.

4. Ms Michelle Dubois was a director of Sonar. She attended the Clamenz offices, where Mr Menon told her to sign documents without explaining what they were. She understood that the documents were to close down a company run by her late husband, Gazmak Transport Pty Ltd.

5. Ms Lisa Wall was a sole director, secretary and shareholder of Sonar. She met with Mr Menon to talk to him about having herself and her daughters removed as directors of certain companies.

58. Mr Menon regularly spoke with Mr Rostankovski about the straw directors, including about what Mr Rostankovski needed to get the straw directors to do, problems they were causing, and how much Mr Rostankovski should be paid.

59. I find that Mr Menon knew at all times that all of the straw directors of the second tier companies were not capable of performing the role of company director. That conclusion is underlined by what Mr Menon said about various of these straw directors:

1. In relation to Mr Nappa, Mr Menon said that he did not think he was smart enough to sit in a meeting with the ATO.

2. In relation to Mr Alaban, Mr Menon said “he’s retarded, he doesn’t read … like he’s illiterate”.

3. In relation to Mr Palumberi, Mr Menon called him “retarded” and said that he “cannot put a conversation together”.

60. I reject Mr Bruckner’s submission that Mr Menon ever believed that these straw directors, who he described as “retarded”, had ever provided effective authority to operate trust accounts in the name of second tier companies.

61. Mr Menon regularly sent emails to the addresses of the straw directors, all the time knowing that it was actually Ms Hammond and Ms Cranston who were operating the relevant email accounts rather than the straw directors themselves. For a solicitor to assist in concealing the fact that companies with a turnover of many millions of dollars had directors who were vulnerable and drug addicted people, with no knowledge about the companies they were allegedly controlling, is thoroughly discreditable conduct.

62. Mr Menon was involved in discussions with Mr Paul and others about finding new straw directors to replace those managed by Mr Rostankovski. Mr Menon and Mr Cranston coached Mr Paul about what to say to potential new straw directors, how much money to offer them and what they had to do. Mr Menon asked Mr Paul “are they going to be good ones, are you going to be able to have control over them?”. When Mr Paul asked Mr Menon about the ramifications for these people becoming straw directors, Mr Menon said that they would just be left with an extensive tax debt but that there would be no jail time.

Meetings from mid-2016 onwards

63. From mid-2016 onwards, Mr Menon attended meetings with other conspirators in which they discussed in detail the tax liabilities of the second tier companies, liquidating second tier companies without paying those liabilities, starting new second tier companies in their place, avoiding detection and managing the straw directors. During these meetings, Ms Hammond and Ms Cranston would provide information about the tax liabilities of each company and how much was being paid to the ATO compared to the 60% target. As I have found, Mr Menon never believed or said that paying 60% of the tax which should have been paid was compliance with the law. Mr Menon apparently thought 60% of tax which should have been paid provided a “safe harbour” from criminal prosecution as, if discovered by the ATO, the conspirators could claim that they were attempting to pay 100% of their tax commitments.

The Plutus cut

64. Early in 2016, Mr Anquetil discussed with Mr Menon manually amending Recipient Created Tax Invoices (RCTIs) to retain funds in Plutus. When Mr Cranston said that Plutus would adopt this model, Mr Menon said that it was a good idea.

65. When later in 2016 Mr Anquetil automated the Plutus cut, he informed Mr Onley and Mr Menon of this change. I accept that for a short time Mr Menon was confused about the precise operation of the automated “glitch” but that by early 2017 he understood its essential workings. In recordings from early 2017, Mr Menon said various things about the Plutus cut. For example, on 2 February 2017, he said to Mr Onley and Mr Anquetil: “we’ll keep the glitch going, til June because we need to get the money”; “If you look on the books, like we’re paying a hundred percent PAYG”; “We’re just fucking with the books”. On 7 February 2017 Mr Menon said:

The thing is, Plutus is so fuckin’ squeaky clean … to the extent that from a tax perspective if you exclude the glitch, like honestly, what – what else is here to … You’ve lodged on time, you’ve paid every dollar.

66. On 20 February 2017, in the context of talking about their dealing with the blackmailers, Mr Menon said:

They raise an invoice each week, we pay them as per normal. … And we’re already taking the margin out of it. Right they didn’t fucking notice … we’re already taken the margin out of it so don’t worry they don’t know the real numbers

Synep

67. In about March 2016, Mr Onley told Mr Anquetil that Mr Larcombe and Mr Willmott had taken millions of dollars from the scheme, by which I find that the principal conspirators understood that Mr Larcombe had allegedly taken far more than his share of the conspiracies. I find that Mr Menon, Mr Onley and Mr Anquetil met at Clamenz to discuss how to proceed. If it were not already clear, I reject Mr Bruckner’s submissions that Mr Menon was not knowingly involved in the conspiracies at this time. During this discussion, Mr Menon suggested that one possible solution was for Mr Cranston and Mr Onley to invest in a range of companies, including Plutus, through a new public company. Mr Onley said that it would allow them to move money around between the second tier companies and Plutus easily.

68. Subsequently, in March 2016, Mr Anquetil, Mr Cranston, Mr Onley and Mr Menon met at Clamenz, where Mr Cranston and Mr Onley said they would incorporate a public company and purchase Mr Anquetil’s shares in Plutus for $5 million. During this meeting, Mr Menon suggested that the purchase would be effected by payment from Plutus to Mr Anquetil, which would be accounted as a loan between the public company and Plutus. This is what occurred. This $5 million loan, which the conspirators knew could only ever be repaid from PAYG and GST which should be paid to the tax office, was at the heart of financial documents relied upon by Mr Bruckner in submissions which he asserted showed Plutus and/or Synep to be profitable. I reject Mr Bruckner’s submission that there was ever a “representation” of profitability of Plutus or Synep that Mr Menon relied on. I find that the conspirators knew throughout that Plutus and Synep were never profitable, unless PAYG and GST which should be paid to the tax office was treated as Plutus’ property or “income”.

69. On 14 March 2016, Mr Cranston and Mr Onley incorporated Synep, which ultimately purchased Plutus from Mr Anquetil. Mr Menon recruited Mr Ian Stephens to be a director of Synep, although Mr Stephens played no role in the operations or decision-making of the company. Mr Menon handled the incorporation of Synep and arranged meetings with Mr Cranston and Mr Onley about Synep.

Concealing the conspiracy, destroying records

70. Mr Menon frequently attempted to employ legal professional privilege in an attempt to ensure that conversations would be concealed. For example, on 17 October 2016, he told Mr Cranston that he should contact him “if you need privilege … when you’re with [Mr Rostankovski]”. On 25 January 2017, Mr Menon said to Ms Cranston “Call me, if you need privilege or anything just conference me”.

71. Mr Menon agreed with others about limiting certain kinds of communication to avoid detection. He was recorded various times requesting that others contact him on “the WhatsApp thing” or the “other thing”. On 27 January 2017, Mr Onley told Mr Menon and Mr Cranston that none of them should have their phones on them. Mr Onley later said he would put his phone on aeroplane mode and Mr Cranston said “Don’t talk over the phone”, to which Mr Menon agreed.

72. Mr Menon played an active role in a series of emergency meetings at Clamenz in late January 2017 following the ATO garnisheeing some of the second tier companies’ bank accounts.

73. In a meeting on 24 January 2017, Mr Menon, Mr Cranston, Mr Onley, Ms Cranston and Ms Hammond discussed ways in which they could keep the ATO from investigating or uncovering the conspiracies. They all agreed that Mr Palumberi would not sound convincing if he were interviewed the ATO and that it would be best if he were paid by the conspirators to leave Australia. They discussed which second tier companies should be wound up and which should be retained. Mr Menon suggested that PPA NT would lodge and then be liquidated. Mr Menon confirmed that corporate keys had been requested and would be sent to the relevant accountants for the five new directors that Mr Paul had obtained.

74. On 27 January 2017, Mr Menon and Mr Cranston put together a spreadsheet of “income” (which was in fact money collected as PAYG and GST which should have been paid to the tax office) and expenses to budget what needed to be done to continue the scheme. Mr Cranston said of PAYG and GST “That’s total income right”, to which Mr Menon responded “Yep. So let’s put back the income”.

75. On 30 January 2017, Mr Anquetil, Mr Cranston and Mr Menon again talked about the figures they had worked out, in the context of Mr Menon raising a concern about continuing to run the Plutus scheme.

76. In a number of conversations, Mr Menon talked about destroying records and documents, in particular by introducing a virus. On 2 February 2017, Mr Menon said “We’ve got to torch this shit to the ground” and later “the key is this, on June thirty, we’re going to get hackers … (indistinct)… hackers that send a virus or something and crash the whole”.

77. On 6 February 2017, Mr Menon directed Ms Hammond to begin “getting all the records together” and “start getting rid of Miranda office”. He said she needed to keep helpful emails and files and dispose of unhelpful ones.

78. On 7 February 2017, Mr Menon said that they needed to “torch the fuckin’ system at the end of this” so that no one would work out “what we did with glitches and shit”. Later that day, he said “as long as we scorch the records it’ll be okay”, since “without the records” no one could get to the bottom of what they did.

79. In various other conversations, Mr Menon discussed the wiping of emails and messages, finding an alternative accounting software to Xero, and hacking and destroying documents.

80. Mr Menon discussed potential defences with his co-conspirators, including in relation to any future criminal charges. For example, on 27 January 2017, when Mr Cranston said that his defence was that he did not receive money, Mr Menon said “There’s no direct, direct link”. On that same day, Mr Menon said to Mr Anquetil that running the scheme for a year and paying 88% of the tax going forward would give them “a completely good defence”.

81. Mr Menon was involved in discussions about blaming the non payment of tens of millions of dollars in tax on Mr Larcombe. For example, on 14 February 2017 in a conversation with Mr Cranston, Ms Hammond, Ms Cranston and Mr Paul, Mr Menon said:

So we've covered all this now and that but basically what we are saying is Peter [Larcombe] ran the whole thing. Okay. You guys had no idea what was happening, if this ever comes to it. I just want you guys to start thinking about the stories, if, obviously, Adam, this goes for you too Loz, Adam, Jay Onley, (indistinct), protects everyone right, me, every single person.

82. Mr Menon was involved in seeking to have Mr Willmott assist in concealing the fraud. On 20 February 2017, he and Mr Cranston coached Mr Willmott on what to say his “story” was. On 3 March 2017, in a conversation with Mr Willmott and Mr Cranston, Mr Menon talked about everyone getting together in a meeting to go through their affidavits. He was also involved in coaching Ms Hammond to tell her cover story and ensuring that she stayed loyal to the other conspirators.

83. Mr Menon was involved in telling lies to the NSW Office of State Revenue directly and in assisting Mr Kitson to do so. In his meeting with the OSR, Mr Menon falsely used the “Peter Larcombe story”, pretended that Jorge Ward had a decision making role, referred to Mr Palumberi and Mr Alaban as legitimate directors, falsely said Mr Clarke acted for Plutus, and referred to Plutus’ primary service as “finance”.

84. Mr Menon was involved in forgeries. On 13 February 2017, he and Mr Cranston discussed with Mr Paul documents that he would need to forge signatures on in order to change the directors of companies. On 27 April 2017, Mr Menon and Mr Anquetil prepared the documents that needed to be signed in relation to the second tier directors Laura Ellem and Judith Reed, and then had Mr Paul forge their signatures.

Mr Menon’s awareness that tax was not being paid

85. As I have found, Mr Menon was aware from June 2015 about the operation of the scheme and the fact that Keystone owed millions of dollars in tax and was to be replaced by Uneek and Sonar. He was aware from June 2015 that not all of the tax which should have been paid by Uneek and Sonar was being paid. The depth of that knowledge increased over time as Mr Menon’s involvement on the conspiracies increased.

86. This finding is underlined by a number of recordings show that, throughout, Mr Menon was aware that significantly less than 100% of the second tier companies’ tax liabilities were being paid.

87. On 17 October 2016, Mr Menon spoke with Mr Cranston about him taking money that was set aside from money that ought to have been paid to the ATO. On 25 October 2016, Mr Menon told Mr Cranston, in the context of a discussion about how much Mr Rostankovski wanted, that “it’s a lot of money that’s owing”. On 7 November 2016, Mr Menon told Mr Onley that Mr Cranston was not happy with the tax percentages being paid to the ATO being so low.

88. On 2 December 2016, Mr Menon endorsed a plan raised by Mr Cranston to continue the scheme with the existing companies rather than setting up new ones. Mr Menon said he agreed because “we’re not that far behind in taxes” and it would be better for the ATO to wind the companies up because they could say “we were happy to go, keep on going and pay our taxes”.

89. In a recorded conversation on 24 January 2017, Mr Menon acknowledged that Sonar “Hasn’t paid its taxes”. Mr Menon was present when Ms Hammond and Ms Cranston explained that, in relation to PPA NT Pty Ltd, they were paying between 60% and 70% of taxes every day, and in relation to PP Services (WA) Pty Ltd, that it had a “small” tax debt each quarter of $1 million. Mr Menon said in relation to PP Australia NSW Pty Ltd, “this is going to go on the liquidation as well. N one. Like no question”. In relation to keeping some of the other companies, Mr Menon said “We’re going to keep three of them and burn two of them” and “Let’s have a fighting track record with them”.

Mr Menon’s role in the money laundering conspiracy

90. I find that Mr Menon was pivotal to facilitating transfers of the proceeds of the tax fraud conspiracy for the benefit, primarily, of the main financial beneficiaries of the conspiracies. He facilitated the transfer of large sums for the benefit of Mr Onley and Mr Cranston through the Clamenz trust account. He also facilitated the use of Synep to misappropriate funds which should have been paid to the tax office. Mr Menon was also involved in setting up California Auto Haus Pty Ltd for the benefit of Mr Rostankovski, assisting Mr Rostankovski to receive wages, and facilitating transfers to and from the second tier companies. He was aware of and involved in dealings concerning vehicles for money laundering being the side companies Jemz Consulting Pty Ltd (Jemz) and G&T Holdings Pty Ltd (G&T).

91. I find that Mr Menon was also pivotal in dealing with the blackmail and the payment of money $25 million to the blackmailers, being PAYG and GST which should have been paid to the tax office. Mr Menon was heavily involved in negotiating with the blackmailers and preparing the false deeds that were used to disguise the true nature of the payments made to the blackmailers. I find that he did so to seek to ensure that the blackmail threat was neutralised, the conspiracies were concealed from the authorities and the media, and to attempt to shift the remaining tax liabilities away from the conspirators. Mr Menon negotiated directly with Mr Sevag Chalabian, a solicitor assisting the blackmailers, in relation to the deeds and facilitated the execution of the deeds knowing that Mr Chalabian was not acting under the instructions of the straw directors named in the deeds. Mr Menon asserted in the deeds that Mr Larcombe was solely responsible for the tax defaults prior to his death and added the false name “James” to the deeds to cover the period after Mr Larcombe had died. Following this, Mr Menon spoke frequently with the other conspirators, especially Mr Kitson, to ensure that the blackmailers were paid.

92. I find that Mr Menon was well aware of payments which should have been made to the tax office being made for the benefit of other conspirators, particularly Mr Cranston and Mr Onley. On 10 October 2016, Mr Menon agreed to let Mr Cranston use money in his trust account to settle on the purchase of a property at Miranda via Jemz. On 25 October 2016, Mr Menon updated Mr Cranston about money going out to side companies Prescott Page and G&T, and how much Mr Cranston was receiving compared to Mr Onley. On 15 November 2016, Mr Cranston and Mr Menon talked about Mr Onley taking more money than had been agreed between them. Similarly, on 30 November 2016, Mr Menon complained to Mr Cranston about Mr Onley’s spending and greed.

93. Between March 2015 and May 2017, Mr Menon was involved in the transfer of at least $75,967,100.05 of tax fraud proceeds that were deposited into the second tier company accounts.

Consideration

94. The tax fraud and money laundering conspiracies commenced in March 2014. As I have found, Mr Menon was knowingly involved from June 2015 until May 2017. While Mr Menon was not an architect of the scheme, he was a very close and trusted advisor to the principal conspirators and architects, and in particular Adam Cranston. Mr Menon also provided instructions to Lauren Cranston and Devyn Hammond who were involved in the day to day processing of payroll and payments.

95. As the scheme progressed over time, and particularly as the scheme threatened to unravel as a result of ATO interest and the blackmail, Mr Menon’s role in the conspiracies became pivotal. Mr Menon took the lead in the conspirators’ attempts to evade detection by the ATO and other authorities, to continue the operation of the scheme and to pay the blackmailers with money that should have been paid to the ATO.

96. The total loss caused by the conspiracies over the period between March 2014 and May 2017 was $105,625,304.36.

97. The parties agree that having regard to the seriousness of the offending the only possible sentence is one of full time custody.

98. The offender is to be sentenced for offences against Commonwealth law and the Court is required to apply the terms of Part IB of the Crimes Act 1914 (Cth). The guiding 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.

99. 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.

100. The offences of which Mr Menon has been found guilty by the jury, carry the following maximum penalties: for the offence against s 135.4(3) of the Criminal Code, imprisonment for 10 years and/or a fine of $108,000; for the offence against ss 11.5(1) and 400.3(1) of the Criminal Code, imprisonment for 25 years, and/or a fine of $270,000.

101. 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 object of ensuring compliance with taxation laws. In addressing this question, care should be taken to ensure that what the offender actually did is considered, rather than any shorthand labels: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. I take the maximum penalty in each case into account as an important guidepost.

102. I take into account the approach to sentencing for a conspiracy charge which was summarised by Simpson J (with whom Spigelman CJ and Harrison J agreed) in Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [78]-[85]. It was held in Tyler at [83]-[84] that sentencing for specific acts alone would:

[83] … be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the ‘role’ of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy – the agreement to participate in an organised criminal activity.

[84] That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry…

103. Those remarks have been approved on numerous subsequent occasions: R v Nguyen [2010] NSWCCA 331 at [46]-[50]; Arenilla-Cepeda v The Queen [2012] NSWCCA 267 at [75]; Alpha v The Queen [2013] NSWCCA 292 at [69]-[70]; Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 303 at [684]; DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22 at [45].

104. These conspiracies demonstrate the “dangerousness” of individuals working in concert for a common unlawful end. I also proceed on the basis that it is axiomatic that general deterrence is a critical consideration in relation to white collar offences like these which are difficult to detect, investigate and successfully prosecute.

105. Before descending into the detail it is important to note that I am obliged to impose a sentence which is of a severity appropriate in all the circumstances of the offence. A “sentence” includes the head sentence and non-parole period. In Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42 at [61], Basten JA explained (Campbell and N Adams J agreeing) that “the fixing of a non-parole period is as much a part of a sentence as is the nomination of the full term”. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant, but always with the purpose of the sentence at the forefront: imposition of a sentence which is of a severity appropriate in all the circumstances of the offence.

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

Section 16A(2)(a) – Nature and circumstances of the offence

107. I find that the two conspiracies fall towards the highest range of objective seriousness of offences of this kind. Mr Menon’s role was initially less important that of the principal co-conspirators Mr Adam Cranston, Mr Onley, Mr Larcombe and Mr Anquetil. Over time, however, Mr Menon’s involvement in the conspiracies grew so that from July 2016 his role in the conspiracies was equal to that of Mr Cranston, Mr Onley and Mr Anquetil. Mr Menon’s role in the conspiracies was substantially more important than the role played by Mr Willmott, Ms Lauren Cranston and Ms Hammond.

108. The conspiracies themselves involved a high degree of sophistication, planning, deception and dishonesty. Across its duration, the scheme caused at least $105,625,304.36 of loss to the Commonwealth. Approximately $75 million of that loss occurred during the period that Mr Menon was involved.

109. Mr Menon was not involved in establishing the conspiracies. Mr Menon had no direct role in Plutus Payroll. Mr Menon did not himself process payments on behalf of the second tier companies. As I have explained, Mr Menon was not principally motivated by greed. Mr Menon was, however, a close and trusted advisor of the principal conspirators and was closely involved in all aspects of the scheme. Mr Menon’s accounting and legal skills, and his professional reputation as a commercial and taxation lawyer, were crucial for the long term successful operation of both conspiracies.

110. I accept the Crown’s identification of the following examples of Mr Menon’s crucial role, which I have found extended over almost two years:

1. Mr Menon was involved in the transition from Keystone to Uneek and Sonar;

2. Mr Menon was involved in Synep acquiring Plutus;

3. Mr Menon gave advice about getting money out of the fraud via payments to MMG and the “Plutus Cut”;

4. Mr Menon participated in meetings about the operation of the conspiracies;

5. Mr Menon used his legal expertise in drafting legal documentation to facilitate key transactions giving effect to the conspiracies;

6. Mr Menon assisted in signing up straw directors proposed by others (but who Mr Menon knew were incapable of playing any role in the management of the companies), and in liaising with Mr Rostankovski to manage the directors;

7. Mr Menon played a prominent role in negotiating and preparing the false deeds to disguise the true nature of the blackmail payments, seeking to ensure the threats were neutralised and conspiracies remained concealed from the authorities and the media. In the drafting of the deeds Mr Menon also devised a scheme which sought to shift tax liabilities away from his co-conspirators and wholly on to the shoulders of vulnerable straw directors; and

8. Mr Menon took substantial steps to try to conceal the fraud from detection, including by lying to authorities, overseeing and orchestrating the forging of documents, discussing and directing the destruction of evidence and coaching others to tell false stories to authorities.

111. The seriousness of the offending was exacerbated by Mr Menon’s misuse of his professional status as a solicitor, including by deploying his solicitor’s trust account. Mr Menon’s sustained involvement in what was one of the most serious tax fraud and money laundering conspiracies to come before this Court, and his actual conduct during those conspiracies, was at the higher end of seriousness of offences of this kind by reason of the use of his status as a solicitor, creating false documents, procuring forgeries and taking active steps to mislead the authorities, including the tax office.

112. In relation to non-exculpatory duress, as I have said, I find that the payment of $25 million to Mr Rostankovski and Mr Chalabian was not made under duress. I find that the payment was made principally to avoid detection of the crimes Mr Menon and his co-conspirators had committed. A part of Mr Menon’s motivation in participating in this blackmail payment, however, was fear of threats made to him by people he believed were linked to criminal organisations. This bears on Mr Menon’s moral culpability in much the same limited way as it bore on Mr Anquetil’s.

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

113. I have found that Mr Menon’s conduct occurred across almost two years and was a persistent course of conduct which was neither spontaneous nor opportunistic. This case has some similarities with R v Agius [2012] NSWSC 978; (2012) 87 ATR 528 at 541 [62], where Simpson J found that the offenders in a conspiracy to defraud the Commonwealth, which included filing false income tax returns over several years, had engaged in a course of criminal conduct for the purposes of s 16A(2)(c).

114. The same conclusion should be reached here.

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

115. Tax fraud is a collective financial injury to the community. It is corrosive of our society. To paraphrase the Victorian Court of Appeal in DPP (Cth) v Goldberg [2001] VSCA 107, tax evasion is not a victimless crime. It is a form of corruption. In the face of brazen tax evasion, honest citizens may begin to doubt their own values and become tempted to do what they see others do with apparent impunity. At the very least, honest taxpayers are left with a legitimate sense of grievance, which is itself divisive.

116. The conspiracy resulted in a significant loss to the Commonwealth in the sum of $105,625,304.36. This is money that the Commonwealth will need to recoup by extracting a greater amount in taxation from other citizens either now or in the future in repaying borrowings.

Section 16A(2)(f) – the degree to which the person has shown contrition for the offence

117. Although Mr Menon described himself to the psychologist as “disgusted” with his behaviour, there was no real attempt to demonstrate contrition for the offence and Mr Menon is not entitled to have contrition taken into account in his favour.

Section 16A(2)(h): The degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences

118. The willingness of an offender to facilitate the course of justice by making sensible admissions and conducting the defence of his or her case efficiently is able to be taken into account as cooperation: R v Doff [2005] NSWCCA 119.

119. Mr Bruckner’s conduct of the trial, and in particular during the lengthy pre-trial period, on behalf of Mr Menon was generally cooperative and helpful. I take into account in Mr Menon’s favour this general cooperation in the conduct of the trial.

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

120. General deterrence is a fundamental consideration in the present sentencing exercise. That applies to both offences proved against Mr Menon. Fraud on the Commonwealth revenue is easy to commit, difficult to detect and comes at a great cost to the community: Hili at [63].

121. In R v Huston; R v Fox; R v Henke; ex parte Cth DPP [2011] QCA 350; (2011) 219 A Crim R 209; the Queensland Court of Appeal held at [58] that sentences must do more than pay lip service to the need for general deterrence, that the conspiracy to evade tax was a form of corruption that has an “insidious corroding effect on society” and that effective deterrents are required to vindicate taxpayers and prevent this type of offending.

122. It is relevant that tax fraud is often committed by white collar criminals. This group is more likely to be first time offenders, fearful of incarceration and capable of rational cost-benefit analysis. There is a real prospect that a substantial sentence will deter offenders with similar characteristics from committing similar crimes: R v Gregory (2011) 34 VR 1; [2011] VSCA 145 at [53]-[54].

123. Money laundering, similarly, involves serious criminal activity: R v Jiao [2015] NSWCCA 95; (2015) 251 A Crim R 236 at [31]. Money laundering is vital to the success of conspiracies such as the present, because it moves 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 is detected: Shi at [109]; R v Lin [2014] NSWCCA 254 at [63]. As I have said, that has proved to be the case here. The need for general deterrence is therefore considerable.

124. There is an additional element here. Mr Menon used his professional status as a solicitor to assist the conspirators in committing the offences. In doing so he abused the position of trust the law and the community affords to solicitors. I agree with Johnson J in R v Chalabian (No 14) [2022] NSWSC 829 at [128] that:

Due to the special position in which solicitors are placed by the law in the community in circumstances where the trust is abused, necessarily the integrity of the profession is called into question and Courts will be required to impose sentences calculated to ensure that no solicitor will be left in doubt as to the serious consequences which would follow from such criminal conduct …

125. In relation to the deterrent effect on the offender, I accept, as Mr Bruckner submitted, that Mr Menon will never again be permitted to practise as a solicitor. It is highly unlikely he will ever be able to practise as an accountant. Despite stating to his psychologist that he was disgusted with aspects of his behaviour, Mr Menon appears still to believe that he and his co-conspirators have done nothing criminal. Whilst not nearly as important as general deterrence, a sentence having a sufficient deterrent effect on the offender is warranted.

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

126. 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 other 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, systematic and persisted in for some time.

127. As the Victorian Court of Appeal said in Gregory:

[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 the 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.

128. I have concluded that a sentence of full-time imprisonment is the only appropriate sentence to impose in this case. Given the gravity of the offending, a significant sentence of full-time imprisonment must be imposed. Mr Bruckner accepted that the imposition of a full-time custodial sentence was here inevitable.

Section 16A(2)(m) – the character, antecedents, age, means and physical or mental condition of the person

129. Mr Menon is 39 years of age and has no criminal record. Where the need for general deterrence is strong, less weight will be given to good character. Good character is of less significance as a mitigating factor in the face of systematic defrauding of revenue: R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192.

130. As Gleeson CJ explained in R v El Rashid (NSWCCA, unreported, 7 April 1995) white collar crime is rarely committed by people with a criminal history. R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7at [410], is authority for the proposition that where, as here, good character places the offender in a position where they can commit the offence, it is of less significance. In the related case of R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 at [74], Hamill J (Fullerton and Adamson JJ agreeing) it was held that good character may be of less significance where the offender’s character, lack of convictions, knowledge, qualifications or standing in their field facilitated or assisted in the commission of the offence. The same observation may be made here. Mr Menon’s offending was facilitated by his knowledge, qualifications and standing as a solicitor.

129. I find that Mr Menon used his prior good character and professional standing to assist in committing the offences. This seriously diminishes the leniency which his good character should attract. R v Hawkins (1989) 45 A Crim R 430 is a case where a solicitor forged documents to carry out his plans. At 438, the Court of Criminal appeal said: “when a solicitor uses his reputation of being of integrity and good character to engage in fraud, it is very difficult for a court to give much weight to that good character”. Mr Menon’s use of forged documents and the size of the sum the subject of the fraud merit the same conclusion as in Hawkins.

130. In Croke v The Queen [2021] NSWCCA 249, the offender was a solicitor sentenced for dishonesty offences. Over nearly three years, the offender participated in efforts to have $702,000.00, which had been confiscated by police as proceeds of crime, paid into his trust account and distributed between himself and his co-offenders. The offender used his skills as a solicitor to provide investigators with false documents, filed proceedings in the Supreme Court seeking the return of the funds and breached his professional responsibilities as a solicitor. The Court of Criminal Appeal described the offender’s abuse of his professional standing as an aggravating factor. Fagan J, said at [142]:

[The offender] abused the respect and trust that would customarily be accorded to a legal practitioner by both the police and the Court. The learned sentencing judge was right to characterise his endeavour to subvert public office holders in the performance of their duties as arrogant. Contrary to the submissions made on the applicant’s behalf, the breach of his professional responsibilities that contributes so greatly to the seriousness of these offences is not in the least reduced by ineptitude or inefficacy. The applicant did his best to derail the proper administration of the law, for financial benefit to himself and to the criminals with whom he acted in concert.

133. This is a case where Mr Menon did his best to use his legal skills to derail the proper administration of the law, for the benefit of the criminals with whom he acted in concert.

134. The following character references were given on the offender’s behalf:

1. Jeevan and Gita Menon, the offender’s parents, stated that the offender “has always been well liked, respected by his family, colleagues and peers and has never been in trouble in his whole life prior to this”. They state that they have tried to assist the offender’s wife with taking care of their daughter, but that they have been unable to assist due to their age, medical conditions and lack of mobility. They expressed concerns about this burden on the offender’s wife and about the inability of the offender’s daughter to visit her father.

2. Richard Hipsley, the offender’s long-time friend, described the offender as “friendly, full of personality, hard-working, and always putting others before himself”. He stated that the offender has aided many of his employees in their personal and professional growth throughout his career.

3. Edward Hock, the offender’s long-time friend, stated that the offender “is a friendly and charismatic person, with a preference to avoid conflict and confrontation” who “is deeply committed to his family, particularly his wife and young daughter”. He described the offender as “being well-liked in several disparate groups” and as someone who has never been in trouble of any kind prior to his offending.

135. I take these references into account in Mr Menon’s favour.

136. I take into account the psychological report of Dr Sidhu on Mr Menon dated 2 May 2023, but give it relatively little weight. The report draws on Dr Sidhu’s observations from a “semi-structured interview” with Mr Menon, psychometric testing and documents provided to her, including the Crown’s case statement and correspondence from an occupational therapist treating Mr Menon’s daughter.

137. Dr Sidhu reports that following his arrest in 2017, Mr Menon entered a period of prolonged mental distress. She says his mood is low, he has lost pleasure and has low motivation, poor sleep and poor appetite. He has been treated with therapy and 12 months of antidepressants, but is currently receiving neither. The six-year period between Mr Menon’s arrest and his conviction was a protracted period of uncertainty that exacerbated his poor mental health. Mr Menon’s anxiety and depression have apparently worsened in the lead up to sentencing. Mr Menon reported particular distress about the impact his incarceration will have on his daughter, who has been diagnosed with a significant medical condition. Before going into custody, Mr Menon was active and involved in his daughter’s care. I take these matters into account in Mr Menon’s favour.

138. I also take into account, at least to a limited extent, in Mr Menon’s favour the “uncertain suspense” for Mr Menon created by the period of years between charge in 2017 and sentence in 2023: R v Todd [1982] 2 NSWLR 517; Sabra v R [2015] NSWCCA 38. The time taken was principally the product of the numerous delays brought about by the COVID-19 pandemic and the length of the trial itself. The understandable anxiety felt by Mr Menon about delays to which he did not contribute is taken into account in his favour here. In doing so, I also note the remarks of Bathurst CJ in Giourtalis v R [2013] NSWCCA 216 regarding the care that needs be taken in the extent to which delay is taken into account, particularly in a complex fraud case. As Mr Menon himself remarked about the complexity of the matters the authorities had to unravel:

There’s no forensic accountant in the world, without even, without even, I can’t even fucking piece this together. Like it’s impossible... Like mate, they will never figure it out… Like that's the only thing that I'm actually, like a blessing in disguise was that it was such a cluster fuck, that no one will figure this out because even I, even me sitting down with you three, all of us together trying to piece it together now is fucking hard, and we know.

139. I also take into account, at least to a limited degree, extra curial punishment including the fact that Mr Menon will never again practise law and that he has been subject to a great deal of negative press attention. In circumstances where Mr Menon’s own description of the conduct here was “the biggest tax fraud in Australia’s history”, neither outcome is surprising but I take it into account in Mr Menon’s favour.

Section 16A(2)(n): The prospects of rehabilitation of the person

140. Mr Bruckner submitted that by reason of his good character and the opinion expressed by Dr Sidhu, I should conclude that Mr Menon has good prospects of rehabilitation.

141. Dr Sidhu reports that Mr Menon “regrets” his behaviour and “accepts responsibility for his conduct and the verdict of the jury”. However, he maintains his innocence of the offences, telling Dr Sidhu it was not his intention to commit fraud and that his behaviour was the result of professional immaturity.

142. Dr Sidhu’s opinion is that Mr Menon’s risk of reoffending is low, given he has no criminal history and because of the deterrent impact of his arrest, trial, media exposure and extensive bail period. She is optimistic about his chances for rehabilitation, because of his willingness to receive psychological treatment and his close and supportive family ties. I am not quite so sanguine.

143. Mr Menon does not appear to understand or accept the gross violation of societal norms involved in dishonestly taking over $105 million of taxes which should have been available to spend by government on behalf of the community which must now be recouped by cuts to government services or from increased taxes paid by other taxpayers – either now or in the future. I find that, on all of the evidence, the offender’s prospects of rehabilitation are fair.

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

144. The probable effect that any sentence or order under consideration would have on any of the person’s family or dependants must be taken into account.

145. When sentencing for offences such as tax fraud where general deterrence is of particular importance, the personal circumstances of an offender, including the effect of the sentence on their family or dependents, may attract somewhat less weight than they otherwise would: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [109].

146. Taking account of the effect of a sentence on an offender’s family cannot displace the requirement that the sentence imposed is of a severity appropriate in all the circumstances. In AE v R [2023] NSWCCA 74, Wilson J (Button and N Adams JJ agreeing) held:

[54] The additional evidence of the impact of the sentence upon family members is not such as to attract an even greater mitigatory benefit than that allowed at first instance. The situations respectively of the applicant’s youngest child and his sister cannot result in a sentence that breaches the statutory requirement that the sentence imposed is of a severity appropriate in all the circumstances. Those circumstances include the very serious nature of the offence, committed by an intelligent individual who was in a financially and socially privileged position in society and who, in blaming others for his crime, appears to have limited insight into his offending, and its potential consequences, which go well beyond the impact upon him and his family. The drug the applicant imported into Australia could, if distributed, have done the sort of harm to the community that he fled his native Colombia to escape.

147. I have taken into account the report jointly authored by Ms Marissa West and Ms Madison Cochrane, the former and current treating occupational therapists of Mr Menon’s daughter. Mr Menon’s daughter has been diagnosed with a serious medical condition as a result of which she experiences high levels of anxiety about even small changes in her routine and the people supporting her and that she is heavily reliant on her family and highly familiar staff that she has built a trusting relationship with over time. I accept that Mr Menon’s daughter requires constant attention and the constant presence and engagement of an adult. In the interest of the child, I will not set out in further detail the evidence about the medical condition of Mr Menon’s daughter but make clear that I accept that her condition is very serious and imposes a very significant burden upon Mr Menon’s wife, who must now bear the burden of primary care.

148. I take into account the difficulties for the offender enjoying face to face contact with his daughter in crowded or noisy environments, which prisons undoubtedly are. I am heartened that Corrective Services NSW has policies aimed at ensuring continued contact between prisoners and their children and I encourage all concerned to be flexible to give effect to those admirable policies in the present case.

149. I have also taken into account the report of Ms Holly Suen, Miss Menon’s treating psychologist. I accept that significant issues will impact Miss Menon due to the absence of her father including disruption of her routine, emotional distress, difficulty understanding changes in her care, and loss of support.

150. Shortly put, I accept that Mr Menon’s incarceration will have a significant effect upon his wife and will likely increase his daughter’s dysregulation. I accept that Mr Menon’s daughter is likely to face additional difficulties during her pre-teen and teenage years without the presence of her father at home.

151. I also accept that the offender’s wife is likely to face challenges in caring for her daughter alone, including physical and emotional exhaustion, financial strain, limited personal time, navigating the healthcare, NDIS and educational systems, psychological stress and social isolation.

152. I take into account favourably to Mr Menon the effect his incarceration will have on his daughter, his wife and himself. The heart breaking circumstances of Mr Menon’s daughter and her medical condition, should not be permitted, however, to distract from the importance of my task, which is to impose a sentence, including a non-parole period, that is appropriate in all the circumstances.

153. Finally on the topic of the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants, I have read and taken into account the large number of authorities cited by Mr Bruckner in support of his submission that it would be open to me to impose a non-parole period here of 50% or less of the head sentence, principally by reason of Mr Menon’s daughter’s conduction.

154. All of these cases, including the one said to be closest to the present, Elshani v R [2015] NSWCCA 254; (2015) 255 A Crim R 488, turn on their own facts. I do not doubt that in an appropriate case a non-parole period of 50% or even less could properly be imposed. No guiding principle emerges from those cases, however, that would require such a conclusion, even in a case with significant medical difficulties relating to an offender’s child as here. This is all the more so where Mr Menon must on any view be imprisoned for a number of years. Whilst Mr Bruckner asked for the imposition of a non-parole period ensuring Mr Menon’s possible release when his daughter was 12, I am not persuaded that the evidence established any more than that it would be of benefit to Miss Menon in her teenage years if Mr Menon could play an active role in her care. Whilst I am prepared to accept that evidence, I am not persuaded that the age 12 is particularly significant.

155. While I take significant hardship to Mr Menon and his family into account in the ways I have described, the sentence, including the non-parole period, imposed must be of a severity appropriate in all the circumstances. To paraphrase Wilson J in AE, those circumstances include the very serious nature of the offences, committed by an intelligent individual who was in a financially and socially privileged position in society and who appears to have limited insight into his offending, and its potential consequences, which go vastly beyond the impact upon him and his family.

Comparable cases

156. 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. Some of the cases which at a very high level are relevant here are:

1. Dickson v R [2016] NSWCCA 105. In that case 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 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).

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. Mr Issakidis’ conviction-only appeal was dismissed by the Court of Criminal Appeal: Issakidis v The Queen [2019] NSWCCA 302.

3. R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370. In that case the offender pleaded guilty to one offence in contravention of s 400.3(1) of the Criminal Code. The loss to the Commonwealth was $3,088,311 and Mr Huang’s total financial benefit was $30,000. Mr Huang was imprisoned for 5.5 years with a non-parole period of 3 years and 4 months. The Court allowed a total reduction of 50% in the sentence due to Mr Huang’s plea of guilty, contrition and past and future assistance.

157. The most significant sentences I have taken into account are those imposed on Mr Menon’s co-conspirators. In R v Hammond [2020] NSWSC 888, I sentenced Ms Hammond for her role in the tax fraud scheme and the money laundering scheme. Ms Hammond pleaded guilty to the same two counts as Mr Menon faced. Ms Hammond had and knew she had a central role in the scheme, even though she operated on instructions from the principal conspirators. The indicative sentences imposed on Ms Hammond were 6 years for the money laundering offence and 4 years for the tax fraud offence. Ms Hammond received considerable discounts. The aggregate sentence imposed, but for those discounts, was 8 years and a non-parole period of 5 years.

158. In R v Lauren Cranston [2023] NSWSC 454, I concluded that Ms Cranston’s role in the conspiracies, whilst different in some respects to Ms Hammond’s was, in all material respects, virtually the same. I imposed an effective head sentence on Ms Cranston of 8 years with a single non-parole period of 5 years.

159. In R v Patrick Willmott [2023] NSWSC 474, I sentenced Mr Menon’s co-offender, Patrick Willmott, for the same two offences of which Mr Menon has been found guilty. Mr Willmott had a prominent role in managing the conspiracies’ “back office” operations. I found the objective seriousness of his offending was above that of Ms Lauren Cranston and Ms Hammond, but well below the schemes’ principal architects, including Mr Adam Cranston, Mr Onley and Mr Larcombe. For his tax fraud offending, I imposed on Mr Willmott a five-year term of imprisonment, and for his money laundering, a term of imprisonment of seven years. These sentences were partly cumulative to create an effective nine year head sentence, with a single six year non-parole period.

160. In R v Kitson [2019] NSWSC 1109, Mr Kitson was sentenced for a period of 9 years and a non-parole period of 6 years, before discounts. Mr Kitson was charged with only one offence, a tax fraud contravention of s 135.4(3) of the Criminal Code. Mr Kitson’s personal gain was approximately $1.3 million and he was near the top of the hierarchy in the tax fraud conspiracy. The head sentence imposed, 9 years, is near the top of the range for offending of this kind. Ms Cranston, Ms Hammond, Mr Willmott and Mr Menon, unlike Mr Kitson, were also convicted of a very serious money laundering charge. Mr Kitson’s role in the conspiracy to defraud was more longstanding than Mr Menon’s. Although Mr Menon joined later, his role ultimately became more important than that of Mr Kitson. On the other hand, Mr Kitson received $1.3 million for his participation in the conspiracies. Taking all of these matters into account, I assess Mr Menon’s role in the tax fraud conspiracy as very slightly below that of Mr Kitson.

161. I have also considered the sentence I imposed on Mr Anquetil: R v Anquetil [2020] NSWSC 995. Mr Anquetil pleaded guilty to the same two offences proved against Mr Menon and had another offence taken into account. For the tax fraud offence, the starting point was 9 years and 4 months imprisonment. For the money laundering offence, the starting point was 12 years imprisonment. Mr Anquetil was one of the principal architects of the conspiracies but was not involved at all in the running of the second tier companies. In laundering the money involved, Mr Anquetil incorporated various entities and falsified documents. His personal gain was at least $12,218,148.55. Mr Anquetil’s knowing involvement in both conspiracies was more serious than Mr Menon’s, but by reason of all of the findings I have made about Mr Menon’s conduct, only slightly more serious.

162. Both parties also referred to the sentences imposed on Daniel Rostankovski and Daniel Hausman in R v Hausman; R v Rostankovski [2022] NSWCCA 24. Mr Rostankovski was involved in the tax fraud conspiracy from mid 2016. Mr Hausman’s conduct, by contrast, occurred in early 2017, when he and Mr Rostankovski extorted almost $25 million from the other conspirators. For their respective conduct:

1. Mr Rostankovski was charged with a tax fraud offence, a money laundering offence for dealing with the proceeds of the blackmail, and a blackmail offence against NSW law. He pleaded guilty. After the application of discounts, the effective aggregate sentence imposed was 10 years and 5 months imprisonment, with a 7 year and 2 month non-parole period. Mr Rostankovski’s conduct, including the blackmail threats, was thoroughly discreditable but Mr Menon’s involvement in the tax fraud conspiracy and money laundering conspiracy was much more serious criminal conduct.

2. Mr Hausman was charged with a money laundering offence and blackmail. He pleaded guilty. Before discounts, the aggregate sentence imposed on Mr Hausman for money laundering would have been 12 years with a non-parole period of 7 years. Whilst Mr Hausman’s money laundering conduct was very serious, Mr Menon’s conduct extended over a much longer period and involved a much larger sum loss to the Commonwealth. Mr Menon’s overall conduct as part of the money laundering conspiracy was slightly more serious than Mr Hausman’s money laundering conduct. The aggregate sentence which would have been imposed on Mr Hausman for blackmail was 7 years and 6 months with a non-parole period of 4 years and 6 months.

163. Finally, so far as comparable sentences are concerned, Mr Chalabian was sentenced by Johnson J following his conviction for laundering the nearly $25 million extorted by Mr Rostankovski and Mr Hausman. Mr Chalabian created a false paper trail, including various documents signed by some of the Plutus “straw directors”, to provide a false impression that the trust distributions were made with authority. Mr Chalabian was found to understand the role of the straw directors. Mr Chalabian personally benefited in an amount of over $930,000. As I have said, Johnson J found that it was significant that his offending was done as a solicitor. The sentence imposed was 12 years, with a non-parole period of 7 years and 6 months. By reason of all of the findings I have made about Mr Menon’s conduct, including the length of his involvement, the vastly greater sums involved and the importance of his involvement in the money laundering conspiracy and the fact that he was closely involved in the tax fraud conspiracy as well, Mr Menon’s overall criminality is more serious than Mr Chalabian’s.

164. I make the following findings about Mr Menon’s role in the conspiracies:

1. Mr Menon’s culpability is substantially higher than that of Ms Hammond and Ms Cranston, both of whose offending was of a seriousness at or towards the bottom end of the conspiracy;

2. I reject the Crown submission that Mr Menon’s culpability for the tax fraud conspiracy was “somewhat” higher than Mr Kitson’s. The relevant comparison is only in relation to the conspiracy to defraud, Mr Kitson not being charged with conspiracy to launder money. Mr Menon’s culpability, taking into account on the one hand the fact that he was not principally motivated by greed and his later start, and on the other his role as a solicitor in facilitating the on going fraud, was very slightly below that of Mr Kitson.

3. Mr Menon’s culpability was substantially higher than Mr Willmott’s. That was because Mr Menon:

1. was involved in the conspiracies for longer;

2. had a crucial role in advising the scheme’s principal architects, which was more significant than Mr Willmott’s role in managing the work of Ms Hammond and Ms Cranston (who also took instruction from Mr Menon);

3. had greater engagement with the straw directors;

4. was a solicitor, and abused that position;

5. was significantly more involved in planning and developing the conspiracies, particularly after the introduction of the PP companies in 2016;

6. was significantly more involved in efforts to conceal the fraud and money laundering, including by destroying documents, lying to the ATO and the OSR and coaching others to lie.

165. Mr Menon’s culpability was below, but only slightly below that of the principal architects of the conspiracies, Adam Cranston, Jay Onley and Simon Anquetil. That is because Mr Menon came to the conspiracies after those three men had established them and, unlike them, Mr Menon was not principally motivated by greed. Having said that, Mr Menon’s role was very significant. For almost two years he participated and abused the position of trust he held as a solicitor. That conduct, which I have described at length in these reasons, is deserving of condign punishment.

166. Having regard to all of the matters I have set out above, I have determined that the appropriate sentences to be imposed on Mr Menon are 8 years and 6 months imprisonment for the tax fraud conspiracy and 12 years imprisonment for the money laundering conspiracy.

167. I have given consideration to the principle of totality and the principles explained by the High Court in Pearce v R (1988) 194 CLR 610; Dickson v R [2016] NSWCCA 105 and Dickson (No 18) [2015] NSWSC 286. In Ms Hammond’s case on the issue of totality, but for the discounts I gave her, I would have imposed a notional 2 year period of accumulation. In Ms Cranston’s case I imposed a 2 year period of accumulation. In Mr Willmott’s case I imposed a 2 year period of accumulation. In Mr Anquetil’s case I would have imposed a notional 3 year period of accumulation.

168. I have determined that in Mr Menon’s case there should be a degree of accumulation between the sentences imposed here for the two counts sufficient to reflect the separate serious criminality involved. Although initially attracted to the idea that the degree of accumulation should be the same as for Mr Anquetil (3 years) I have decided taking all that I have said into account including the matters relating to the effect of incarceration on Mr Menon, his wife and his daughter, that 2 years is the appropriate degree of accumulation. This gives rise to an effective head sentence of 14 years.

169. Under s 19AB of the Crimes Act 1914 (Cth), I impose a single non-parole period for both offences of 9 years. This sentence is of a severity appropriate for the offences and provides a minimum period that Mr Menon must spend in custody appropriate to all the relevant elements of punishment, including rehabilitation, the objective seriousness of his offences and his subjective circumstances, including his family circumstances.

Conclusion and sentence

170. Having regard to all of the matters identified in these reasons, I make the following orders:

1. Mr Menon is sentenced to a term of imprisonment of 8 years and 6 months to commence on 2 May 2023 and expire on 1 November 2031 for the tax fraud conspiracy;

2. Mr Menon is sentenced to a term of imprisonment of 12 years to commence on 2 May 2025 and expire on 1 May 2037 for the money laundering conspiracy;

3. Under s 19AB of the Crimes Act 1914 (Cth) a single non-parole period of 9 years commencing on 2 May 2023 is fixed;

4. The offender is first eligible for parole on 1 May 2032.

171. I am required by s 16F of the Crimes Act to explain the sentences I have imposed. I have imposed an effective head sentence of 14 years imprisonment commencing on 2 May 2023 and expiring on 1 May 2037. As required by the Crimes Act, I have fixed a single non-parole period for both offences. The single non-parole period is a term of 9 years, also commencing 2 May 2023. That means that Mr Menon will be imprisoned for not less than 9 years. If he is granted parole at the end of that time, or before the expiration of the head sentence for the money laundering conspiracy, 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 federal 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.

**********

Annexure 1 - Exhibit II

Annexure 2 - Exhibits PP to RR

Annexure 3 - Exhibit LL Diagram 32

Annexure 4 - Exhibit LL Diagrams 33-34

Amendments

04 July 2023 - Redactions made to paragraphs [18] and [33]

Decision last updated: 04 July 2023