R v Ellery - [2012] VSC 349

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

SCR 2012 0058

THE QUEEN

DAVID JOHN ELLERY

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2012
DATE OF SENTENCE:	20 August 2012
CASE MAY BE CITED AS:	R v Ellery
MEDIUM NEUTRAL CITATION:	[2012] VSC 349

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CRIMINAL LAW – Sentencing – False accounting – Dishonest falsification of invoice for approximately $80,000 – Not for personal financial gain – Chief financial officer and company secretary, in position of trust – Early plea – Remorse – Co-operation with authorities – Undertaking to provide further assistance to Crown – Little need for specific deterrence – Need for general deterrence, denunciation and punishment – Sentenced to 6 months’ imprisonment, wholly suspended for 2 years – Crimes Act 1958 s 83(1)(a)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Robinson SC Mr K Armstrong Ms S Keating	Commonwealth Director of Public Prosecutions
For the Accused	Mr P Boulten SC	Robert Stary & Associates

HER HONOUR:

David John Ellery, you have pleaded guilty to one charge of false accounting, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic).

The offence occurred between 28 June and 19 July 2006. At the time, you were the chief financial officer, and a company secretary, of Securency International Pty Ltd (“Securency”).

Securency is an Australian company, which is jointly owned by the Reserve Bank of Australia and a British company, Innovia Films BVBA. Securency manufactures and supplies a range of unique substances used in banknotes and security documents. Its polymer substrate product is used by various people, including another Reserve Bank subsidiary, Note Printing Australia Limited (“Note Printing”), in the printing of banknotes.

In 1999 and 2000, Note Printing and Securency each negotiated and entered into separate agreements with a Malaysian man, Abdul Kayum Syed Ahmad (“Kayum”), and/or his company, Aksavest Sdn Bhd, appointing them as their agent in Malaysia. The agency agreements provided that the agent was to be remunerated in the form of success-based commissions, based on the contracts which the agent obtained for the relevant company. The agent was to bear the cost of any expenses incurred in order to obtain contracts.

In December 2003, Note Printing entered into a contract to supply Bank Negara Malaysia with 160 million 5 ringgit polymer banknotes. Securency was not a party to the banknote contract. Note Printing used Securency’s polymer substrate in manufacturing the banknotes, and the contract price of $15.2 million included a price for that substrate. Note Printing paid Kayum substantial commission payments, in respect of the 2003 contract.

The Commonwealth Director of Public Prosecutions has brought charges against Securency, Note Printing, and various former officers of the two companies, alleging that they conspired with each other and with Kayum, between October 2001 and December 2003, to offer bribes to officials in the Malaysian bank, in order to obtain the business of supplying 5 ringgit polymer banknotes. The DPP alleges that the bribes were to be paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ellery

Details

AGLC: R v Ellery [2012] VSC 349
Case: [2012] VSC 349
Decision Date: 20 August 2012

CaseChat Overview and Summary

The case of R v Ellery involved the defendant, who was the chief financial officer and company secretary, charged with false accounting for dishonestly falsifying an invoice for approximately $80,000. The defendant's actions did not stem from personal financial gain but from a position of trust within the company. The matter was heard in the County Court of Victoria. The central legal issue was to determine the appropriate sentence for the defendant's actions, considering factors such as the defendant's role, the nature of the offence, early plea, remorse, and cooperation with authorities.

The court needed to balance various sentencing considerations, including the need for general deterrence, denunciation, and punishment, given the breach of trust and the significant financial impact. The defendant had shown remorse and cooperated with authorities, which were mitigating factors. However, the court noted that there was little need for specific deterrence as the defendant had already expressed remorse and was cooperating. The court also considered the defendant's undertaking to provide further assistance to the Crown. In light of these factors, the court determined that a wholly suspended sentence would adequately address the sentencing objectives.

Concluding its deliberations, the court sentenced the defendant to six months' imprisonment, wholly suspended for two years. The decision was made under the authority of section 83(1)(a) of the Crimes Act 1958, which allows for the suspension of sentences in cases where the court deems it appropriate to do so. The court's decision reflected a balanced approach, taking into account both the mitigating factors present in the case and the need for appropriate punishment and deterrence.

Orders